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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Quick Hits

• The 9/11 Notice Act and regulations require employers to notify “where practicable” current and former employees who worked in affected areas of Lower Manhattan and Brooklyn of potential eligibility for federal compensation funds.
• The funds are not limited to first responders but apply to those helped with the clean-up and construction or lived, worked, or went to school in the affected areas during and after the attacks.

A quarter century after the terrorist attacks on September 11, 2001, the effects of the tragedy continue to linger, especially in New York City. Recently, Mayor Zohran Mamdani declared September 11 an official “Citywide Day of Remembrance and Service” to honor victims, first responders, survivors, workers, and affected families.

In May 2025, New York’s Empire State Department (ESD) finalized regulations under the 9/11 Notice Act requiring employers to notify “where practicable” current and former employees who worked in Lower Manhattan and Western Brooklyn during and in the months after the September 11, 2001, terrorist attacks of their potential eligibility for the September Eleventh Victim Compensation Fund (VCF) and the World Trade Center (WTC) Health Program.

The VCF, which continues to receive 750 new claims each month, provides compensation to individuals (or representatives of deceased individuals) present at one of the three plane crash sites (New York City, the Pentagon, and Shanksville, Pennsylvania) and who have since been diagnosed with a 9/11-related illness. The fund is not limited to first responders and is open to those who worked at the sites, including journalists and those who worked or volunteered in construction, cleanup, and debris removal, as well as those who lived, worked, visited, or went to school in the NYC Exposure Zone.

The WTC Health Program provides monitoring and treatment for certain conditions to eligible first responders and also provides benefits to eligible survivors who lived, worked, went to school, attended childcare, or attended adult day care in a specified area affected by the dust and debris from the collapse of the World Trade Center towers.

The New York regulations state that employers’ notifications must be made by email, text, electronic messaging system, postal mail, or facsimile, and entities providing such notifications must maintain a duplicate copy for not less than three years. Additionally, the state has urged, but not required, dissemination through social media.

The regulations specify that the notification obligations apply to those employees in specified affected areas. The WTC Health Program area covers Lower Manhattan south of Houston Street and any blocks in Brooklyn within a 1.5-mile radius of the former World Trade Center site, including Dumbo and Brooklyn Heights. The VCF area covers the immediate blocks around the World Trade Center and “any area related to or along the routes of debris removal, such as barges and the Fresh Kills landfill.”

Next Steps

While the regulations do not specify any express requirements regarding the timing of the notices, New York employers that had employees in the affected areas on September 11, if they have not already, may want to identify current and former employees who worked in the affected areas and immediately begin notifying those individuals.

Ogletree Deakins’ New York office will continue to monitor developments and will provide updates on the Construction, Employment Law, Hospitality, New York, and Retail blogs as additional information becomes available.

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Quick Hits

• The NLRB upheld an arbitration confidentiality provision to the extent it protected the confidentiality of the proceedings and the outcome, while found that the provision’s blanket prohibition on disclosing the existence of arbitration was unlawful.
• The NLRB also upheld an arbitration provision covering “any and all” employment-related claims, finding a prominent savings clause reasonably informed employees of their rights to file a charge with the NLRB.

On August 10, 2026, the NLRB issued a 2–1 supplemental decision in Ralphs Grocery Company, 375 NLRB No. 25. The NLRB found that an employer’s arbitration policy applying to “any and all” claims did not unlawfully interfere with employees’ access to the NLRB processes. Notably, the NLRB also upheld most of the arbitration policy’s confidentiality provision, finding it was shielded by the Federal Arbitration Act (FAA). But the NLRB found that a blanket prohibition on employees’ acknowledging the existence of an arbitration was not protected because it exceeded the scope of the arbitration process.

The decision resolved those two lingering questions after the Ninth Circuit Court of Appeals remanded the case—which started as a California wage-and-hour class action and Private Attorneys General Act (PAGA) lawsuit—following the Supreme Court of the United States’ 2018 decision in Epic Systems Corp. v. Lewis. That case resolved a separate issue over a class-action waiver in favor of the employer.

Confidentiality Clause Mostly Upheld

The arbitration confidentiality provision at issue required employees to keep the “existence, content, and outcome” of any arbitration proceeding “in the strictest confidence” and prohibited disclosure “without the prior written consent of all the parties.”

The NLRB analyzed the provision under its 2020 precedent in California Commerce Club, which held that confidentiality provisions contained in an arbitration agreement are shielded by the FAA to the extent that they protect the confidentiality of an arbitration proceeding. The NLRB noted that California Commerce Club recognized that while employees’ interest in discussing terms and conditions of employment is at the heart of Section 7 protection, a confidentiality provision “would nevertheless be lawful if shielded by the FAA.”

In the instant case, the NLRB thus found that the “portions of the confidentiality provision restricting the disclosure of the content and outcome of the arbitration are limited to the rules under which the arbitration will be conducted” and are lawful. In particular, the NLRB said the part of the confidentiality clause prohibiting the disclosure of “the outcome” of the arbitration is consistent with California Commerce Club.

However, the NLRB said the provision’s blanket prohibition on disclosing the very existence of an arbitration proceeding crossed the line. “Prohibiting the disclosure of the fact that the arbitration ever happened long after it ended is a perpetual gag order against disclosing, outside the arbitral forum, that the arbitration ever occurred,” the NLRB said. (Emphasis in original). The NLRB said the blanket provision was therefore unlawful under the NLRA since the overall arbitration policy applied to all claims, including claims arising under the NLRA.

Arbitration Policy Does Not Unlawfully Interfere With NLRB Access

The arbitration policy at issue required arbitration for “any and all … employment-related disputes” between employees and the employer “that would constitute cognizable claims or causes of action in a federal, state or local court or agency under applicable federal, state or local laws.” The policy contained a “savings clause” that expressly stated that employees “retain the right under the National Labor Relations Act to file charges with the National Labor Relations Board.”

The NLRB found the arbitration policy with the “prominent, stand-alone” savings clause was lawful because “a reasonable employee could not interpret the arbitration policy to restrict their right to file charges with the Board.” Further, the policy did “not give employees the impression that filing charges would be futile.” (Emphasis added).

Key Takeaways

The NLRB decision reinforces precedent upholding confidentiality provisions in arbitration agreements and highlights the interplay between the NLRA and FAA. The ruling indicates that such confidentiality provisions, even if they limit employees’ Section 7 interests in disclosing details of arbitration proceedings, are nevertheless lawful if protected by the FAA. However, the NLRB drew a line between maintaining confidentiality of the arbitration process and imposing a prohibition on acknowledging that an arbitration even occurred, the latter of which violates the NLRA.

The decision further suggests that well-drafted arbitration agreement with a prominent and clear savings clause is sufficient to survive scrutiny under the NLRA.

Employers wishing to maintain arbitration agreements may wish to review their arbitration policies and accompanying confidentiality provisions in light of this recent NLRB decision.

Ogletree Deakins’ Arbitration and Alternative Dispute Resolution Practice Group and Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Arbitration and Alternative Dispute Resolution, California, Class Action, and Traditional Labor Relations blogs as additional information becomes available.

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Quick Hits

• On September 8, 2026, the Mexican Institute of Social Security (IMSS) published an agreement in the Official Gazette of the Federation that approved the mandatory generation of the digital employers registration identification card (Digital TIP), which will supersede any previously issued physical TIPs.
• The agreement enters into force on September 23, 2026, and employers must enable access to the IMSS electronic notification portal, called Buzón IMSS, to generate the Digital TIP.

The Digital TIP must be generated through the IMSS electronic notification portal (Buzón IMSS). Employers must enable access to the Buzón IMSS in order to access this new service.

Main Modifications and Procedures

The implementation of this agreement represents the following key changes:

1. The Digital TIP is now mandatory and will supersede any previously issued physical TIP for procedures that require a TIP.
2. The Digital TIP is generated exclusively through the Buzón IMSS using the Tax Authority’s electronic signature (e.firma) as the authentication method.
3. IMSS personnel will now be able to verify the employer’s representative capacity, ensuring that an employer’s authorized representatives can carry out any procedure before the IMSS.
4. The Digital TIP format includes the employer’s name, address, date of issuance, name of authorized representatives (maximum of three per employer registration number (Registro Patronal)), and a verification code in QR format. It also includes a transaction folio, certificate number, the e.firma used to designate the employer’s representative(s), and a digital seal to prevent fraud and ensure authenticity.

The Buzón IMSS: A Prerequisite for the Digital TIP

Since the Digital TIP can only be generated through the Buzón IMSS, employers that have not yet enabled access to this portal must do so. The Buzón IMSS is the IMSS electronic notification portal that allows employers to receive notices, administrative resolutions, and requirements related to their compliance obligations. It also allows employers to submit required information, file requests, and review their status before the IMSS.

The following are some of the procedures and notifications available through the Buzón IMSS:

• Certificate of Weeks of Contribution to the IMSS, with a breakdown of enrollment history
• Certificate of Eligibility to Receive Medical Services
• Clarifications and Guidelines on the Operation of the Buzón IMSS
• Resolution of Determination of the Work Risk Premium
• Resolution of Correction of the Work Risk Premium
• Invitation to review the correct classification of employers
• Generation of a Certificate of Compliance with Social Security Tax Obligations
• Suspension of the Administrative Enforcement Process
• Inquiry Regarding Closed Occupational Risk Cases
• Application for Registration and Update of Beneficiaries

For notification purposes, the Buzón IMSS is more efficient than the IMSS’s daily Gazette. The Gazette is for public consultation, which imposes an additional administrative burden while searching through all the content of the Gazette for relevant notices. Additionally, it can only retain notifications for ten business days, making it inefficient and complicated for employers to be informed of any possible notification from the IMSS, especially those related to administrative resolutions and audit procedures.

Employers may want to periodically review the Buzón IMSS to verify any possible notification, or news from the IMSS, considering that, in accordance with the Social Security Law, notifications issued through this portal will be effective on the third business day after they are received by the employer.

Tips for Ensuring Future Compliance

The agreement enters into force on September 23, 2026. Before that date, employers may want to ensure that they have taken the following actions:

1. Verifying that the e.firma of the company and of the legal representative is active before the Tax Authority
2. Enabling the Buzón IMSS if not already activated and designating a representative to regularly review the portal
3. Reviewing and determining the representatives who will be incorporated in the Digital TIP

Ogletree Deakins’ Mexico City office will continue to monitor developments and will provide updates on the Cross-Border and Wage and Hour blogs as additional information becomes available.

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Quick Hits

• The federal government released FAQs that confirm employers are not required to retroactively allocate the full reward for a wellness program when an employee completes a reasonable alternative standard. The guidance applies to health-contingent, outcome-based wellness programs.
• The FAQs provide welcome DOL enforcement relief, but they do not eliminate private litigation risk or resolve all open compliance questions for wellness programs.
• Federal law requires employers to provide a reasonable alternative for employees who cannot satisfy an initial standard under an outcome-based wellness program because of their medical condition.
• The FAQs are not binding on federal courts.

Background

In an effort to help plans address rising healthcare costs, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Affordable Care Act (ACA) permit employers to reward employees for healthy habits through employer-sponsored wellness programs. These may include weight loss programs and tobacco cessation programs. If enough employees participate, a wellness program could prevent absenteeism for medical reasons and reduce a plan’s costs related to pharmaceuticals and doctor visits.

The federal agencies issued final regulations on nondiscriminatory wellness programs in 2006 and 2013. The new FAQs state that the requirement for retroactive application of the award was in the preamble to the 2013 final regulations, but was not in the regulatory text. The federal agencies confirmed they will not take enforcement action against an employer for failing to provide a full reward retroactively to the beginning of the plan year after an employee satisfies a reasonable alternative standard. Employers only need to provide the reward prospectively, when the employee completes the alternative standard, if retroactive rewards are not otherwise provided.

There are multiple class actions pending nationwide that challenge the validity of tobacco surcharge wellness programs. Several of these cases have settled, resulting in millions of dollars of settlement payments.

Reasonable Alternative Standards

Health-contingent wellness programs can be activity-only or outcome-based. The wellness program rewards are contingent on activity when they require action, such as completion of a certain number of nutrition training sessions, exercise classes, or daily nutrition logs. When a reward is based on an outcome, like achieving a certain weight, body-mass index (BMI), blood pressure level, or cholesterol level, the employer must provide a reasonable alternative standard for employees who have medical conditions, such as diabetes or hypothyroidism, that prevent them from meeting the target. The employer also may waive the requirement completely for those with certain health conditions.

An employer cannot legally impose a financial penalty on tobacco users if they fail to quit, unless it provides a legally compliant tobacco-cessation program as an alternative to remove the surcharge.

Wellness Program Communication

The FAQs include a reminder that plans must disclose the availability of a reasonable alternative standard in wellness program materials and notices, if the program is health-contingent. The notice must contain contact information for obtaining a reasonable alternative standard and a statement that recommendations from an individual’s personal physician will be accommodated.

Prior guidance included sample language for this purpose. This requirement creates communication challenges because including reasonable-alternative-standard language in every wellness-related communication can make participant materials longer and arguably more difficult to understand and more likely to be ignored. The FAQs helpfully remind plan sponsors that, under prior guidance, if plan materials merely mention that a wellness program is available, without describing its terms, this disclosure is not required.

Types of Rewards

Some common rewards include discounts on health insurance premiums, contributions to a flexible spending account or health savings account, additional paid time off, wearable fitness trackers, subsidized gym memberships, points to purchase items online, and company swag. The Internal Revenue Service (IRS) treats cash and most gift cards as taxable income, so those generally must be reported as compensation, even if they are connected to a wellness program. They can also raise deferred compensation issues under Code section 409A, and wage-and-hour issues in some instances.

These wellness program rewards have increasingly become the target of plaintiffs’ attorneys. Since the ACA was adopted, wellness program incentives and related regulations have been challenged under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), particularly where plaintiffs have challenged whether incentives are truly voluntary or instead coercive.

Federal law prohibits wellness program rewards that are coercive, discriminatory, or structured to penalize employees with certain health conditions. “[A]ny wellness program must be reasonably designed, based on all the relevant facts and circumstances, to promote health or prevent disease, and that plans and issuers must ensure that the program is not a subterfuge for discrimination or underwriting based on a health factor, or any of the other requirements for wellness programs,” the guidance states.

It is illegal for the total value of all wellness rewards to exceed 30 percent of the total cost of employee-only health insurance, except for tobacco cessation programs, which can reward up to 50 percent. When designing the incentives, employers may want to consider the impact of any premium discounts or surcharges on whether their health plan will meet ACA affordability requirements.

Next Steps

Although the FAQs provide welcome relief from the agencies’ current enforcement position, they do not eliminate litigation risk. Courts may give limited deference to the guidance, and private plaintiffs are not bound by the guidance. Plan sponsors may wish to proceed cautiously before making changes to their wellness programs based on the guidance.

However, the guidance serves as an important reminder that, as plans move into open enrollment season, they may want to ensure that:

• Any communications regarding the wellness program include required disclosures, and the wording is evaluated with the recent litigation risks in mind.

• Incentives meet the applicable ACA limits and other limits.

• Rewards are being treated appropriately for tax purposes, including withholding and reporting as applicable.

• Any modifications to ensure that programs are providing a sufficient return on investment comply with applicable legal requirements.

Employers may wish to evaluate their wellness programs to determine whether they are meeting objectives, such as reducing healthcare costs, reducing absenteeism, or improving retention rates. If a wellness program is not getting enough participation, changing the size or type of reward may help to boost participation rates.

Not having to provide a reward retroactively may help employers implement a larger reward and not have to absorb as much of the cost. Employers may wish to train HR and managers on how to properly handle requests from employees who want to complete a reasonable alternative standard and receive the wellness reward.

Ogletree Deakins’ Employee Benefits and Executive Compensation Practice Group will continue to monitor developments and will post updates on the Employee Benefits and Executive Compensation, Employee Engagement, Employment Tax, and Healthcare blogs as additional information becomes available.

Karen N. Brandon is a shareholder in Ogletree Deakins’ Morristown office.

Carly E. Grey is a shareholder in Ogletree Deakins’ Washington, D.C., office.

Mark E. Schmidtke is a shareholder in Ogletree Deakins’ Chicago 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

• Whether live, in-person teaching was an “essential function” was a fact question for the jury, particularly given that the job description did not distinguish live from virtual instruction and the college had used virtual classrooms during COVID-19 and inclement weather.
• Failing to communicate a decision on a requested accommodation, even while considering it internally, may constitute a denial sufficient to establish a prima facie failure-to-accommodate claim.
• Both parties have obligations in the interactive process: a jury could find bad faith if an employer fails to consider a requested accommodation and repeatedly seeks information it already possesses, while an employee’s refusal to cooperate may be deemed a failure to engage in the process.

Background

In Davis v. Valley Forge Military Academy and College, No. 23-cv-02004 (E.D. Pa. Aug. 21, 2026), an associate professor at a military academy and junior college informed his supervisor of his multiple sclerosis (MS) diagnosis. Two months later, he requested leave under the Family and Medical Leave Act (FMLA), submitting paperwork from his doctor that also identified reasonable accommodations, including that he be allowed to teach one to two classes in person, with the rest taught remotely from home. Although the human resources (HR) director indicated that she might need additional information regarding his request, the professor stated that he would not be providing any. The HR director offered in-person alternatives, including an accessible conference room, a classroom without stairs, a desk and chair for sitting or elevating his feet, a separate entrance, and a golf cart. The professor rejected them, insisting on remote work.

In a subsequent discussion with his supervisor, the professor referenced the conversation with the HR director and reiterated that he would not engage in further discussion. In the meantime, the HR director continued to explore and document possible on-site accommodations. The HR director also informed the professor that she needed to clarify some items in his FMLA paperwork and requested that he sign a medical release to allow her to speak directly with his doctor. After initially refusing, the professor finally authorized the release of medical records related only to the FMLA request.

Due to his worsening condition, the professor then went out on continuous FMLA leave for several months. During that time, his supervisor and HR discussed the possibility of a virtual classroom, but did not decide whether to provide one. At the end of his FMLA leave, the college continued his leave and requested additional information about his condition. The professor contended, however, that the college already had sufficient information based on his FMLA paperwork and prior notes from his doctor. He then sought revised accommodations, including virtual faculty duties during flare-ups. Regarding his current status and revised accommodation request, the college requested a new medical authorization because the prior release was no longer valid. The professor denied receiving the request. He did not return after his FMLA leave expired, and he later received long-term disability benefits. His employment was eventually terminated.

The professor subsequently filed suit, alleging an adverse employment action and a failure to accommodate in violation of the Americans with Disabilities Act.

Legal Framework

The ADA bars discrimination against qualified individuals with disabilities. A “qualified individual” is someone capable of carrying out the essential duties of a given position, either independently or with reasonable accommodation. The U.S. Equal Employment Opportunity Commission (EEOC), which is responsible for enforcing the ADA, has published interpretive guidance identifying several considerations relevant to whether a particular function should be deemed essential. These considerations include, but are not limited to, the employer’s own assessment of the role, any written job descriptions, and the day-to-day tasks actually performed by incumbents in the position.

An employer is obligated to provide reasonable accommodation to enable the employee to perform the essential functions of the position, absent undue hardship to the employer. A failure-to-accommodate claim may be based on a showing that the employer either refused to provide a proposed reasonable accommodation or failed to engage in the interactive process after a request for accommodation was made, though a reasonable accommodation was possible.

The Court’s Ruling

The employer moved for summary judgment on the professor’s claims, arguing that there were no material facts in dispute and that, as a matter of law, the professor’s claim should fail. The court disagreed, finding genuine disputes of material fact existed as to several key issues.

Essential Functions

Whether live, in-person teaching was an essential function of the job remained in dispute. The job description did not distinguish between live and virtual instruction, and virtual instruction might not have been an option when the job description was written. Although the supervisor asserted that on-campus presence and live teaching were essential, the professor cited the college’s virtual classroom capabilities, which had been used during the COVID-19 pandemic and in inclement weather, and the common practice among professors of combining non-live and live teaching. According to the court, a jury would need to resolve the dispute.

Failure to Communicate

Although the college contended it had “never denied” the virtual classroom accommodation, neither HR nor the supervisor told the professor whether he would receive it. The court found that such a failure to respond could support a claim for failure to accommodate and was an issue for the jury.

Interactive Process Issues

The court agreed with the college that it appeared the professor was uncooperative in the interactive process when he refused to sign a full medical authorization, told HR that he would provide no additional information, and (at least initially) insisted on his desired accommodation. That notwithstanding, the court found that a jury could find the college had acted in bad faith by failing to fully consider the virtual classroom and by repeatedly seeking medical information it arguably already had. Because of this, the question as to whether the college had engaged in in the interactive process in good faith was an issue for the jury.

Virtual Accommodation Not ‘Unreasonable as a Matter of Law’

The college cited Taylor v. Phoenixville School District, a Third Circuit opinion from 1999, for the principle that an employee who “insists on a single specific accommodation that is unreasonable as a matter of law … will be at fault for the breakdown in the interactive process.”

While the court acknowledged this principle, it found that issues of fact existed as to whether live teaching was an essential function of the job, and that the college had not shown that virtual teaching (the single specific accommodation sought by the professor) was unreasonable or met that standard. Its adequacy remained a factual question for the jury, according to the court.

Key Takeaways

This decision builds on the guidance provided by the Third Circuit and discussed in our prior article. Employers, especially those in the Third Circuit (comprising Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands), handling remote or virtual work accommodation requests may wish to consider the following points:

• It may be helpful to review and revise job descriptions from previous years (particularly, those created prior to the COVID-19 pandemic) to clearly identify essential functions, including any requirement for in-person presence.
• It may be wise to consider each request individually, especially where virtual capabilities exist and have been used before, even if in a more limited manner. Remote work requests may not always be unreasonable.
• It may be useful to document and communicate accommodation decisions in writing and in a timely fashion. Failing to decide or communicate, even if considering the request internally, may be viewed as a denial.
• Employers may wish to track information received in relation to accommodation requests, particularly medical information, and be thoughtful about whether additional information is required. Repeatedly requesting materials already in hand may be used to support a finding of bad faith in the interactive process.
• Like employers, employees must participate in the interactive process in good faith. A refusal to provide relevant medical information or to cooperate with reasonable employer requests may weigh in the employer’s favor.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the COVID-19/Coronavirus, Higher Education, Leaves of Absence, Pennsylvania, and Return to Work blogs as additional information becomes available.

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