Quick Hits

• Multinational employers planning workforce reductions must complete required consultations before making any global announcements or cutting system access.
• Many countries require mandatory government notifications even for single terminations, not just mass layoffs.
• A global reduction in force is not a single event—it is a coordinated series of local processes, each with its own rules, timelines, and execution formalities.

This U.S.-centric approach, when implemented outside the United States, routinely fails and the consequences can be severe. Invalid terminations, injunctions, penalties, and significant liability result when employers overlook the legal requirements that govern dismissals in other jurisdictions. The following are the five most common and costly mistakes.

Mistake #1: Announcing and Acting Before Consultation Is Complete

Many employers do not realize that in jurisdictions with works councils, they cannot make a final decision or communicate that decision until consultation is complete. This means no global announcements, no cutting of system access, no updating of organizational charts, and no notifying managers or colleagues.

Consultation must occur while the proposal remains genuinely open to change. Presenting employees or works councils with a proposal fait accompli—even if labelled as “consultation”—may render the entire process defective. In many jurisdictions, this results in injunctions halting the layoffs, substantial penalties, or terminations being declared invalid.

The mistake is not just failing to consult with the works council, it is failing to understand that consultation must be completed before any external signals suggest the decision is final.

Mistake #2: Underestimating Consultation Timelines

Employers accustomed to U.S.-style reductions in force (RIFs) routinely underestimate the time required to lawfully complete consultations. Collective redundancy regimes, triggered once statutory thresholds are met, commonly require:

• Prescribed minimum consultation periods
• Specific information disclosures
• Completion of consultation before notices are issued

Individual consultation obligations may also apply and must be conducted meaningfully, not as a box-ticking exercise. Rushing these processes to meet a global announcement date is a recipe for invalid terminations.

Mistake #3: Missing Mandatory Government Notifications—Even for Single Terminations

Many employers do not realize that some countries require mandatory government notifications even when dismissing a single employee, not just in collective redundancy situations. In many jurisdictions, collective redundancy thresholds trigger notification requirements and statutory waiting periods during which dismissals cannot take effect.

Common mistakes include:

• Assuming notification requirements only apply to mass layoffs
• Filing notification after notices have been issued
• Overlooking mandatory standstill periods

A global RIF communication strategy that ignores these requirements can derail the entire process.

Mistake #4: Assuming Employers Can Unilaterally Pay in Lieu of Notice or Use Garden Leave

Even sophisticated global employers sometimes assume they can simply pay employees in lieu of notice or place them on garden leave to achieve an immediate departure. In many jurisdictions, neither is permissible without the employee’s consent or express contractual authority.

Before assuming immediate separation is possible, employers need to confirm:

• whether the employment contract expressly permits pay in lieu of notice (PILON);
• whether local law recognizes and regulates such payments; and
• whether placing employees on garden leave requires their consent.

Improperly relying on PILON or garden leave, without authority, may not only expose the employer to damages but can affect the validity of the termination itself.

Mistake #5: Getting the Termination Notice Wrong

Even if employers follow every other step correctly, the termination can be completely void if the notice is not signed properly. Many employers do not appreciate how technical—and unforgiving—this requirement can be.

Critical questions include:

Who must sign?

Does local law or do corporate rules require a specific person or multiple persons to sign the termination notice? A notice signed by an unauthorized individual may be invalid.

How must they sign?

Is a simple electronic signature sufficient? Is a qualified electronic signature (QES) required? Or must there be a wet ink signature? Using the wrong form can invalidate the notice entirely.

How must the notice be delivered?

Must the termination notice be delivered in person, by registered mail, or through another prescribed method? When is a termination notice deemed legally received?Choosing the wrong delivery vehicle can upend the termination.

An execution process that works in one country, or even for one type of document, may render a termination notice void in another. This is one of the most technically avoidable mistakes, yet one of the most common.

Avoiding These Mistakes: Planning Jurisdiction-by-Jurisdiction

Global RIFs require more than a communication strategy, they require a legal sequencing strategy. Employers that treat cross-border layoffs as a single coordinated event may experience failure in their RIF initiatives.

Careful jurisdiction-by-jurisdiction analysis, conducted early in the planning process, is essential to identify consultation triggers, notification requirements, permissible payment alternatives, and execution formalities before global timelines are set.

The employers that avoid these mistakes in 2026 will be those that understand that a global RIF is not one event; it is a coordinated series of local processes, each with its own rules, timelines, and formalities.

Ogletree Deakins’ Cross-Border Practice Group and Global Reorganizations Practice Group will continue to monitor developments and will post updates on the Cross-Border, Global Reorganizations, and Reductions in Force blogs as additional information becomes available.

Shirin Aboujawde is a shareholder in the New York office of Ogletree Deakins, and a partner in the firm’s London office.

Peg Ventricelli, a practice assistant in the Stamford office of Ogletree Deakins, contributed to this article.

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Quick Hits

• Trucking employers must pay Washington-based drivers 1.5 times the regular rate for hours worked over forty per week, or the “reasonable equivalent” of overtime.
• In Bostain v. Food Express, Inc., Washington’s Supreme Court held that the MWA applies to interstate drivers regardless of where the drivers are performing the work.
• Noncompliance can be very costly, and violations can result in double damages under Washington law.
• Employers with Washington operations may want to evaluate their payroll and routing practices to ensure compliance with Washington’s laws.

‘Washington-Based’ Employees

The Washington Supreme Court’s decision in Bostain v. Food Express, Inc., 153 P.3rd 846 (2007), established that the MWA applies to all hours worked by Washington-based interstate truck drivers, regardless of where the work is performed. (“The act’s purpose does not depend on the work itself being performed within this state,” the court wrote.)

In other words, the MWA “requires overtime compensation for hours worked over forty per week for interstate driving, including hours spent working out of state.” (See WSR 08-21-150, Permanent Rules, Washington State Department of Labor and Industries.) Since Bostain, courts and the Department of Labor and Industries have elaborated on how to determine whether a worker is a “Washington-based” employee.

Mere residence in Washington, coupled with occasional work in the state, is insufficient to confer “Washington-based” status on an employee. Instead, courts use a ten-factor choice-of-law test to evaluate whether a given driver is “Washington-based” for purposes of applying Washington’s overtime laws, weighing the totality of the circumstances to determine whether Washington or some other state has the “most significant relationship” to the employment relationship.

Key Takeaways

Trucking employers doing business within and outside the State of Washington may want to consider the following:

• Evaluating compliance practices: Employers with Washington operations and interstate drivers should review their payroll and organizational practices to ensure they comply with Washington law.
• Implementing reasonable equivalents: Employers with Washington-based drivers paid on a piece rate should consider implementing a “reasonable equivalent” of overtime in their payroll practices to meet legal requirements.

Ogletree Deakins’ Seattle office, Trucking and Logistics Industry Group, and Wage and Hour Practice Group will continue to monitor developments and will provide updates on the Trucking and Logistics, Wage and Hour, and Washington blogs as additional information becomes available.

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Quick Hits

• The EAT’s recent decision in Chand v. EE Ltd serves as a reminder of the principle that employers cannot retrospectively consider reasons for dismissal after their occurrence.
• The Employment Tribunal seeks to examine what the employer actually believed at dismissal, and whether that belief was reasonably held, following a fair and balanced process.
• Employers that ensure decision-makers are well-informed, regularly trained, and actively engaged in the dismissal process may be best placed to defend their decisions if challenged.

In Chand v. EE Ltd, the employer dismissed the employee for alleged gross misconduct, believing the employee had acted dishonestly and fraudulently. However, the EAT found that a central part of the employer’s reason for the dismissal had not been reasonably held.

Finding that the employer had not properly investigated the matter but had instead relied largely on assumptions rather than facts, the EAT concluded the dismissal was unfair. Because the employer’s reason for the dismissal—a belief in fraud—was not held on reasonable grounds (though concerns existed that might have been borne out by a proper investigation, had one been undertaken, justifying the dismissal), the EAT concluded that the Employment Tribunal had erred in upholding the dismissal. The Employment Tribunal could not substitute other considerations made during the employer’s process for the principal reason that actuated the employer’s dismissal decision.

For employers, the EAT’s decision makes clear that the principal reason for a dismissal must have a reasonable basis—ideally, one that has been identified and supported by evidence adduced through an investigation that allows the decision-maker to reach a justifiable conclusion. Communications with an employee during the dismissal process must identify the principal reason for the action taken.

Ogletree Deakins’ London office and Global Reorganizations Practice Group will continue to monitor developments and will provide updates on the Cross-Border, Global Reorganizations, Reductions in Force, and United Kingdom blogs as additional information becomes available.

Roger James is a partner in the London office of Ogletree Deakins and co-chair of the firm’s Global Reorganizations Practice Group.

Lorraine Matthews, a practice assistant in the London office of Ogletree Deakins, contributed to this article.

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Quick Hits

• Employers across the EU are preparing for the June 2026 deadline to comply with the EU Pay Transparency Directive, which mandates new pay equity practices and transparency obligations.
• The directive enhances employee rights by allowing employees to request detailed pay information, and employers must provide this within a set timeframe.
• The directive introduces a harmonised gender pay gap reporting framework, requiring detailed reports based on company size and mandating joint pay assessments for significant pay gaps, with enforcement measures including penalties for noncompliance.

New Recruitment Requirements

The directive introduces a new level of openness around pay. Employers will be required to disclose the starting salary or salary range for a role in the job advertisement or at the latest before the first interview. Employers will no longer be allowed to ask candidates about their previous pay history. These measures are designed to prevent historical pay inequality, ensuring that salary decisions are based on the value of the role rather than an individual’s past earnings. These changes will require employers across the EU to review their recruitment processes and stay up to date with the new requirements.

Enhanced Employee Rights to Pay Information

The directive significantly expands employees’ rights to access pay‑related information. Employees will be entitled to request details of their own pay level and the average pay levels of colleagues performing the same work or work of equal value, broken down by gender. Employers must provide this information within a set timeframe, typically within two months, although this timeframe may vary at member state level.

This enhanced transparency means employers must ensure their pay structures are clear and consistently recorded. The European Institute for Gender Equality is set to introduce a step-by-step job evaluation toolkit to aid employers with this process, although this is currently at a draft stage.

Expanded Gender Pay Gap Reporting Across the EU

While several EU member states already have gender pay gap reporting requirements, the directive introduces a harmonised and more detailed reporting framework. Under the directive, employers are required to report the gender pay gap according to headcount per legal entity in each member state:

• 250 or more employees: Annual reporting from 7 June 2027
• 150 to 249 employees: First report by 7 June 2027, then every three years
• One hundred to 149 employees: First report by 7 June 2031, then every three years

A key new requirement is the obligation to conduct a joint pay assessment where a gender pay gap of more than five percent exists and cannot be justified by objective, gender‑neutral factors and it has not been remedied within six months. This assessment must be carried out with employee representatives and must identify the causes of the gap and the measures needed to address it.

Stronger Enforcement

Under the directive, the burden of proof will sit with the employer, meaning organisations must be able to demonstrate that their pay practices are fair and transparent. Employees who experience pay discrimination will have access to compensation, and member states will enforce penalties for noncompliance.

Implementation Progress Across the EU

Member states are currently at different stages of preparing the legislation required to transpose the directive into national law. Some countries have already launched consultations or published draft legislation, while others are expected to do so in the coming months, while some member states, such as the Netherlands, have expressed concern over delays in meeting this deadline. For employers, implementing measures can be a timely process and waiting for final legislation at the national level before taking action may increase the risk of non-compliance.

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.

Further information can also be found by listening to our podcast, “Understanding the EU Pay Transparency Directive: What Employers Need to Know.”

Ogletree Deakins’ London office, 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.

Lorraine Matthews, a practice assistant in the London office of Ogletree Deakins, contributed to this article.

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Quick Hits

• The FTC said in a policy statement that it will take a relaxed COPPA enforcement position for certain website and online service operators that collect personal information solely for determining a user’s age without first obtaining parental consent if specific conditions are met.
• The FTC’s policy statement applies only to “general” and “mixed” audience operators of websites and online services, not operators that target children as their primary audience.
• Given overlapping state obligations, flexible standards in the FTC’s policy statement, and a forthcoming formal review of the COPPA Rule that may result in additional regulatory changes, enforcement risks for businesses persist.

COPPA’s Age Verification Dilemma

Under COPPA, covered operators—commercial websites or online services that are directed toward, or have actual knowledge that they collect personal information from, children under the age of thirteen—must provide parental notice and obtain verifiable parental consent before collecting, using, or disclosing personal information from children under thirteen online. This requirement has created a compliance dilemma for businesses that need to deploy age verification technologies because some age verification tools themselves may require the collection of personal information such as the user’s photograph, date of birth, or biometric data. This catch-22 put covered operators in a difficult position: risk violating COPPA by failing to verify a user’s age, or risk violating COPPA by deploying age verification technologies.

The FTC’s policy statement is intended to alleviate this tension. FTC Bureau of Consumer Protection Director Christopher Mufarrige framed the guidance as encouraging innovation, stating that age verification technologies are “some of the most child-protective technologies to emerge in decades” and that the agency’s policy “incentivizes operators to use these innovative tools, empowering parents to protect their children online.”

FTC’s New COPPA Enforcement Posture

Operators who want to rely on the FTC’s signaled enforcement flexibility must satisfy six detailed requirements related to the collection, use, and disclosure of age verification data. Specifically, operators must:

1. refrain from using or disclosing information collected for age verification for any other purpose besides determining a user’s age;
2. delete such information promptly after completing the age verification process, retaining it no longer than necessary;
3. disclose information collected for age verification purposes only to those third parties the operator has taken “reasonable steps” to determine are capable of maintaining the confidentiality, security, and integrity of the information, including by obtaining certain written assurances;
4. provide “clear notice” to both parents and children regarding what information is collected for age verification purposes;
5. employ “reasonable security safeguards” for age verification data; and
6. take “reasonable steps” to determine that the age verification method the operator selects is likely to produce accurate results.

Additionally, operators that target children as their primary audience are not eligible for relaxed enforcement under the policy statement.

Looking Ahead: Formal Regulatory Changes to Come

The policy statement will likely remain in effect until the FTC publishes formal COPPA Rule amendments addressing age verification, which may be initiated in the coming months and could include amendments. Until that time, businesses may want to keep in mind that the FTC’s policy statement has not yet been enshrined in law and could be withdrawn at any time.

Given the limited and discretionary nature of the policy statement, the strict conditions, and the need for “reasonable practices,” the FTC will likely scrutinize implementation. Additionally, the policy statement may have a cascading effect. State rules regarding the collection and processing of minors’ data which are often intertwined with COPPA—potentially including in the age verification context—still apply. For example, our previous article explained the New York attorney general’s guidance for businesses, schools, and other organizations that collect or process the personal data of minors in New York. These frameworks and regulators are not bound by the FTC’s policy statement. Thus, companies may face a landscape in which determining a user’s age can trigger different compliance duties under state and federal laws. Businesses considering deploying age verification technologies may want to evaluate whether their practices align with the policy statement and prepare for potential additional guidance from the FTC.

Ogletree Deakins’ Cybersecurity and Privacy Practice Group will continue to monitor developments and will provide updates on the Cybersecurity and Privacy blog as new information becomes available.

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DOL Issues Independent Contractor Proposal. Today, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued a notice of proposed rulemaking, titled, “Employee or Independent Contractor Status Under the Fair Labor Standards Act, Family and Medical Leave Act, and Migrant and Seasonal Agricultural Worker Protection Act.” The proposal would officially rescind the January 2024 regulation promulgated by the Biden administration, which the DOL is no longer enforcing. The DOL argues that the 2024 rule “fails to provide an analysis for distinguishing between independent contractors and employees under the FLSA that is sufficiently clear and leads to predictable outcomes.”

In its place, DOL proposes a new independent contractor test that largely follows the regulation that was finalized in the closing days of the first Trump administration in 2021 but never went into effect. As in the previous proposal, this latest effort would adopt an “economic realities” test for determining whether a worker is an independent contractor or an employee. This test focuses on two core factors: the nature and degree of control over the work, as well as the worker’s opportunity for profit or loss. The proposal also readopts the six illustrative examples contained in the 2021 rule (while tweaking the example relating to speed-limiting devices on vehicles) and includes two new practical examples that illuminate the “amount of skill required for the work” factor.

Unlike the 2021 rule, the Fair Labor Standards Act (FLSA) analysis set forth in the proposed rule would also specifically apply when determining employee or independent contractor status under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and the Family and Medical Leave Act (FMLA). The proposal notes, “Workers and businesses alike would benefit from the simplicity and certainty of having a single uniform standard for assessing employee or independent contractor status under all three laws.” Comments on the proposed rule are due on or before April 28, 2026.

Margaret Santen, Catherine D. Catoe, and Leah J. Shepherd have additional details.

NLRB Scrubs Regulatory Text to Accurately Reflect Joint Employer Reg Status. This week, the National Labor Relations Board performed a bit of administrative housekeeping by updating the Code of Federal Regulations with the text of the joint-employer rule the Board issued in 2020. Buzz readers are well aware of the joint-employer policy pendulum swings over the last decade plus, and likely remember that this 2020 rule was replaced by the Board with a different joint employer rule on October 27, 2023. That rule was subsequently vacated by a federal district court in Texas in March 2024. Since the 2023 rule never went into effect, the 2020 rule has remained the applicable joint employer standard at the Board. This week’s action by the Board removes the text of the vacated regulation from the rule books and replaces it with the 2020 rule text. Elizabeth M. Soveranez and Zachary V. Zagger have the details.

USCIS Seeks Restriction of Work Authorization for Asylum Seekers. On February 23, 2026, U.S. Citizenship and Immigration Services (USCIS) published a proposed rule entitled “Employment Authorization Reform for Asylum Applicants.” Key components of the proposal include the following:

• USCIS will pause acceptance of initial (not renewal) work authorization applications when USCIS’s average processing time for affirmative asylum applications over a consecutive period of ninety days exceeds 180 days. Due to the current backlog of asylum cases, the proposal anticipates that this provision will result in an initial pause of acceptance of asylum-based work authorization applications that “may last from 14 to 173 years, or longer.” The proposal notes that this calculation does not account for the other proposed changes, which “would also shorten those processing times.”
• USCIS will also require asylum seekers to wait 365 days from receipt of their completed asylum application before applying for work authorization (the current waiting period is 150 days).
• USCIS will also require applicants seeking work authorization, including renewals, to submit biometric information.

Comments are due on or before April 24, 2026.

House Lawmakers Examine Paid Family Leave. On February 25, 2026, the House Committee on Education & Workforce’s Subcommittee on Workforce Protections held a hearing entitled, “Balancing Careers and Care: Examining Innovative Approaches to Paid Leave.” Republicans on the subcommittee noted the need for paid family leave while pointing out the difficulties employers have with complying with state and local requirements that span multiple jurisdictions. Accordingly, they advocated for the bipartisan “More Paid Leave for More Americans Act” as a step in the right direction. On the other hand, Democratic members of the subcommittee touted the perceived benefits of state-based paid leave programs, criticized voluntary models as “low quality,” and advocated for universal paid family leave, such as the Family and Medical Insurance Leave (FAMILY) Act. While Republicans and Democrats are at least talking about paid leave, and at least a handful of them have joined together on the “More Paid Leave” bill, achieving consensus on a national framework remains a challenge.

Grand Canyon, National Park. Yesterday in 1919, 107 years ago, President Woodrow Wilson signed into law the Grand Canyon National Park Act, establishing the Grand Canyon as the United States’ fourteenth national park. (Yellowstone, established March 1, 1872, was the nation’s first national park.) If you’re wondering what took so long for the Grand Canyon to achieve this status, don’t blame Benjamin Harrison. As a senator from Indiana, the future U.S. president began introducing bills to grant national park status to the Grand Canyon as early as 1882. As president of the United States, Harrison created the Grand Canyon Forest Reserve in 1893. (It was one of his last acts as president and the first act taken to protect and preserve the Grand Canyon.) After Harrison’s term of office, Grover Cleveland, William McKinley, Theodore Roosevelt, and William Howard Taft all served as U.S. presidents until President Wilson signed the Grand Canyon National Park Act well into his second term.

On February 18, 2026, the U.S. General Services Administration (GSA) released a draft revised Supporting Statement providing the text of this proposed certification, which would be added to the registration process for the System for Award Management (SAM.gov), the federal database where entities must register to receive federal funding.

The certification requirement implements Executive Order (EO) No. 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” and the U.S. attorney general’s July 2025 memorandum, “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination” (AG Memo). While this proposal targets financial assistance recipients, a similar certification for federal contractors is expected in the near future. Public comments are due by March 30, 2026.

Quick Hits

• Organizations receiving federal financial assistance will likely be required to certify that their DEI-related programs do not violate federal antidiscrimination laws.
• The certification carries significant liability exposure, including False Claims Act liability for organizations and potential criminal liability under 18 U.S.C. § 1001 for authorized officials who sign.
• Public comments are due by March 30, 2026; federal contractors may also wish to monitor this proposal, given that a parallel certification requirement is expected.

Context

The draft statement provides a redline (see page 8) of the draft Financial Assistance General Certifications and Representations to be accepted by entities registering on the System for Award Management (SAM.gov) to receive federal financial assistance. The draft statement explains that the revisions to the Financial Assistance General Certifications and Representations are intended to align with updated executive branch guidance, including the AG Memo, and with EO 14173.

This alignment has practical implications, as agencies across the federal government would rely on a single set of baseline certifications in SAM.gov for assistance recipients, potentially reducing fragmentation in agency-specific terms. As we have noted previously, federal contractors are subjected to varying EO 14173 certifications. In addition, the draft statement also reaches beyond the antidiscrimination landscape—though that remains the most prominent piece.

The New DEI Certification

A central feature of the draft statement is the DEI-related certification. The text affirms that federal antidiscrimination laws apply to programs or initiatives that involve discriminatory practices, including those labeled as “diversity, equity, and inclusion” (DEI) or “diversity, equity, inclusion, and accessibility” (DEIA), and specifically references prohibitions on discrimination based on race or color. Notably, there is no reference to sex, age, disability, veteran status, or various other categories protected from discrimination.

The draft offers examples of practices that may violate federal antidiscrimination laws, including:

• preferential treatment based on race or color, such as race-based scholarships or preferential hiring or promotion practices;
• segregation by race or color in trainings, facilities, or program eligibility;
• the use of race or color as criteria, such as in “diverse slate” hiring policies, race-based contract selection, or allocation of program resources;
• training programs that stereotype, exclude, or single out individuals based on protected characteristics or that create a hostile environment; and
• retaliation against employees, participants, or beneficiaries who raise concerns or refuse to participate in programs they reasonably believe are discriminatory.

The examples do not import the AG Memo’s articulated focus on unlawful proxy discrimination. Yet, the examples do warn against “implicit segregation through program eligibility” and “resources based on race or ethnicity, including through the use of ‘cultural competence’ requirements, ‘overcoming obstacles’ narratives, or ‘diversity statements.’”

While the AG Memo acknowledges that not all initiatives characterized as “DEI” are unlawful, the inclusion of these examples at the certification level signals heightened federal scrutiny of practices that differentiate or allocate opportunities based on protected characteristics. Indeed, by embedding these examples within the SAM.gov certification itself, GSA would seemingly elevate what has been advisory guidance and enforcement criteria into a uniform, up-front grantee attestation.

However, the draft language may create confusion by focusing exclusively on race—rather than any other protected characteristics such as sex—and, even then, referring variously to “race or color,” “race-based,” and “race or ethnicity.”

Additional Certifications Beyond DEI

Beyond DEI, the draft adds certifications that recipients:

• “[w]ill not knowingly bring or attempt to bring to the United States, transport, conceal, harbor, shield, hire, or recruit for a fee an illegal alien, and will not induce an alien to enter or reside in the United States with reckless disregard [of unlawful status]”; and
• “[w]ill not fund, subsidize, or facilitate violence, terrorism, or other illegal activities that threaten public safety or national security.”

The draft also consolidates compliance attestations to a non-exhaustive list of federal statutes and regulations applicable to financial assistance, including the Trafficking Victims Protection Act of 2000; drug-free workplace requirements for federal grant recipients; whistleblower protections at 41 U.S.C. § 4712; the National Environmental Policy Act of 1969; 2 C.F.R. parts 25, 170, and 180; various false claims and false statement provisions; the Administrative False Claims Act of 2023; and key civil rights laws such as Title VI of the Civil Rights Act of 1964, Title VIII of the Civil Rights Act of 1968, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975.

Important Framing Elements and Liability Exposure

The draft contains two notable framing elements. First, it states that to the extent any certification is the subject of an active court order or injunction that is legally binding on the recipient and the relevant awarding agency, and that prohibits enforcement of such requirements, the affected certification will be deemed inapplicable to that recipient while all other certifications remain in force.

Second, and critically for compliance officers and executives, the draft closes with an acknowledgement that the authorized official may face criminal liability under 18 U.S.C. § 1001 and civil liability under the False Claims Act for misrepresentations to the government. This creates significant personal exposure for individuals responsible for signing these certifications on behalf of their organizations.

Public Comments

To date, all comments have focused on the EO 14173 and DEI aspects of the proposed certification. In particular, comments are focused on the implications for grantees, particularly for healthcare-focused fields, including health, behavioral health, substance use, reentry, and social service programs, where grants and research often target particular populations and have defined performance outcomes.

Next Steps

Federal grantees may want to offer comments by the March 30, 2026, deadline. Further, they may want to conduct privileged EO 14173 reviews, policy audits, and privileged bias assessments to ensure a good-faith basis for certifying. All federal contractors will want to carefully monitor this proposal, as the proposed Federal Acquisition Regulation–related clauses may use similar language.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance, Government Contracting and Reporting, and Workforce Analytics and Compliance practice groups will continue to monitor developments and provide updates on the Diversity, Equity, and Inclusion Compliance, Government Contracting and Reporting, and Workforce Analytics and Compliance blogs as additional information becomes available.

For more on this topic, please join us for our upcoming webinar, “FAR Overhaul: Tips to Survive the Biggest Procurement Shake-Up in 40 Years,” which will take place on Tuesday, March 3, 2026, from 2:00 to 3:00 p.m. EST. The speakers, Joseph E. Ashman and T. Scott Kelly, will provide important information for employers doing business with the federal government. Register here.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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Quick Hits

• New York City’s Department of Consumer and Worker Protection (DCWP) published updated FAQs and form notices in light of the amended ESSTA.
• Thirty-two hours of unpaid safe and sick time is available immediately to current employees and new hires.
• Twenty hours of paid prenatal leave is available immediately to current employees and new hires.
• Employers are required to provide documentation on use and accrual of unpaid and paid safe and sick and paid prenatal leave each pay period.

Overview

As previously reported, on October 25, 2025, New York City adopted Int. No. 0780-2004, which amended the ESSTA. The amendments expanded covered reasons to use ESSTA and provided for a separate bank of thirty-two hours of unpaid safe and sick leave and codified the requirement that employers provide a separate bank of twenty hours of paid prenatal leave. The ESSTA amendments also scale back employer obligations under the Temporary Schedule Change Law (TSCL), which required employers to grant two temporary schedule changes annually for personal events. The DCWP’s updated FAQs provide clarification and guidance regarding the ESSTA amendments on several areas, which are highlighted below. The DCWP has also rebranded unpaid and paid safe and sick leave as “Protected Time Off” while reiterating that paid prenatal leave is a separate benefit and in addition to protected time off.

Immediate Unpaid Safe and Sick Leave for Current Employees and New Hires

In addition to paid safe and sick time, the ESSTA amendment requires all employers, regardless of size or net income, to provide thirty-two hours of unpaid safe and sick time or “protected time off” to employees. As drafted, the amendment stated that the unpaid safe and sick time would be available immediately upon hire and subsequently on the first day of the employer’s calendar year.

The FAQs clarify that, as of February 22, 2026, employers must provide thirty-two hours of unpaid safe and sick leave for immediate use to all current employees, in addition to new hires. Additionally, employers must provide another bank of thirty-two hours of unpaid protected time off on the first day of the employers’ calendar year. The FAQs also clarify that employers cannot provide a prorated amount of immediately available hours when an employee is hired partway through the calendar year.

Additionally, the FAQs clarify that if an employer provides an additional thirty-two hours of paid time off benefits over and above what is required of the employer by the ESSTA, and makes those thirty-two hours immediately available for use, the employer does not need to create a separate leave bank for the unpaid thirty-two hours required by the ESSTA amendment.

Pay Statement and Recordkeeping Requirements

The FAQs provide additional guidance on the recordkeeping requirements for unpaid safe and sick leave and paid prenatal leave. For each pay period, employers must include the amount of unpaid protected time off available for use in a calendar year. The employer can include this information on pay stubs or other documentation provided to the employee for each pay period. Pursuant to the FAQs, for each pay period an employee uses paid prenatal leave, the employer must provide the amount of paid prenatal leave used during the pay period and the total amount of paid prenatal leave still available for use in the fifty-two-week period. Such information may be provided on pay stubs, in other documentation to the employee for the pay period, or in separate written documentation.

Temporary Schedule Change Law

As previously reported, the ESSTA amendments scaled back the requirements under the TSCL. Under the TSCL, employers were required to grant two temporary schedule changes annually for personal events. The ESSTA amendments expanded leave coverage to include the personal events covered by the TSCL and replaced the required grant of schedule changes with thirty-two hours of unpaid leave. While employees may still request temporary schedule changes instead of taking protected time off, such as working remotely, swapping shifts, or changing the time or location of their work shift, employers are no longer obligated to approve them but can approve, deny, or propose an alternative to such a request.

Updated Model Notices

The DCWP also published updated versions of the Notice of Employee Rights and the Workers’ Bill of Rights, which employers must distribute to their employees and post in the workplace by March 8, 2026.

The updated Notice of Employee Rights outlines employer obligations for paid prenatal leave as well as the expanded uses for paid and unpaid protected time off, the amount and accrual rate for paid and unpaid protected time off and paid prenatal leave, and a statement against retaliation.

In addition, the Workers’ Bill of Rights has been updated to incorporate the amendments to the ESSTA and TSCL.

Rules for Protected Time Off Policies

The DCWP also published Rules for Protected Time Off Policies. Employers are required to have a written paid time off policy, and paid prenatal leave policy and sick policies are required to be included in that single document. The policy rules also outline information that must be included in an employer’s policy, including, but limited to, an explanation of accrual, front-loading, carryover calculations, and policies and procedures for using protected time off and paid prenatal leave. Employers may want to update their policies and distribute them to employees by March 8, 2026.

Next Steps

Employers in New York City or with employees in New York City may wish to review and revise relevant leave-related policies and procedures to reflect the ESSTA amendments and updated FAQs. Employers may also wish to educate and train supervisors and human resources professionals on these changes to ensure their compliance, as well as update existing practices to align with the above requirements. In addition, employers may wish to review their pay statement practices and other recordkeeping policies and procedures to ensure they comply with the new requirements.

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

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on New York City’s ESSTA requirements. Premium-level subscribers have access to updated policy templates for New York. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.

Leslie A. Lajewski is a shareholder in the Morristown office of Ogletree Deakins.

Jamie Haar is of counsel in the New York office of Ogletree Deakins.

Emily A. Hall is a 2025 graduate of the Cardozo School of Law and is currently awaiting admission to the State Bar of New York.

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Quick Hits

• Several new developments could impact the employment of military service members and their families and employers’ compliance obligations in 2026.
• Changes range from proposals to increase incentives for hiring military spouses to enhanced employment protections for service members while on duty.
• Military spouse employment opportunities and support remain a focus for pending legislation.

1. Military Spouse Employment

One key area to watch is bipartisan legislation to reduce the unemployment rate among spouses of active-duty military service members, who often face rates several times the national rate.

On November 20, 2025, Senators Bill Cassidy (R-LA) and Maggie Hassan (D-NH), and Representatives Steven Horsford (D-NV) and Lloyd Smucker (R-PA) introduced an updated version of the Improve and Enhance the Work Opportunity Tax Credit Act (S.3265/H.R.6231) that would extend the Work Opportunity Tax Credit (WOTC) to military spouses. The WOTC provides federal tax credits to employers that hire certain “American job seekers who have consistently faced barriers to employment.” That proposed legislation is similar to the Military Spouse Hiring Act (H.R.2033/S.1027), introduced earlier in 2025.

For employers, the proposals could create new tax incentives to hire military spouses, alongside other proposals that could reshape compliance and hiring strategies.

2. Frequent Relocations

Frequent relocations continue to strain military families and can make it more challenging for employers to hire and retain military spouses. Expanding the WOTC could create new incentives for employers to hire military spouses and tap into this underutilized talent pool.

In addition, the Supporting Tours Across Years (STAY) Act (H.R.6146), introduced in November 2025,  seeks to limit relocations of active-duty servicemembers. The bill would require a comprehensive review of official transfers of active-duty service members, known as Permanent Change of Station (PCS), to determine when relocations may be unnecessary and to reduce the frequency of moves. The U.S. Congress has not yet taken up the STAY Act this year, but if it is eventually enacted, it could result in reduced PCS moves that could affect recruiting, retention, and remote-work policies for military spouses.

3. Military Re-Employment Protections

Federal law already provides civilian employment leave protections for veterans and service members who are involuntarily or voluntarily deployed for military service. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) entitles service members who meet certain conditions to be restored to the same job and benefits they had prior to their military service and allows them to elect to continue their employer-based health plan coverage for themselves and their dependents for up to twenty-four months while on leave.

In January 2025, Congress enacted the Senator Elizabeth Dole 21st Century Veterans Healthcare and Benefits Improvement Act (Dole Act), which included provisions affecting USERRA enforcement and remedies. The Dole Act bolstered anti-retaliation protections and allowed plaintiffs alleging USERRA violations to seek minimum liquidated damages of $50,000 and attorneys’ fees.

Agencies and courts may continue to interpret and apply the Dole Act’s USERRA-related provisions. Employers may want to ensure their military leave and reemployment policies, training, and escalation procedures align with current USERRA obligations and emerging guidance.

4. New Employer Resources

In January 2025, the U.S. Department of Labor’s Veterans’ Employment and Training Service (DOL/VETS) launched a program for employers to seek guidance for ensuring compliance. The Support and Assistance for Leaders in USERRA Training and Employment (SALUTE) program is an opportunity for employers to request technical guidance on USERRA-related questions or specific issues in their workforce before the onset of a DOL/VETS complaint or lawsuit.

Next Steps

Employers may want to prepare for potential 2026 activity by assessing policies and practices affecting servicemembers, veterans, and military families. Priority actions include reviewing USERRA compliance programs and training, updating military leave and reemployment policies, validating health-benefit continuation procedures, and aligning hiring and tax-credit screening processes to quickly capture new incentives for military spouses.

Ogletree Deakins’ new Military Workforce Practice Group brings together a team of lawyers, many of whom are veterans or currently serving in the Reserves or National Guard, who regularly advise on USERRA compliance, policy development, multistate implementation, and investigations and litigation. Amy Quick Glenos and James A. Patton, Jr. co‑chair the group.

In addition, the Ogletree Deakins Client Portal covers new laws and developments in Military Leave. All client-users have access to Snapshots and Updates. Premium subscribers have access to details, updated templates, and other resources. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

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

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Quick Hits

• The Regional Labor Court of Hamburg’s ruling in a case involving the termination of a radiation protection officer underscores the importance of verifying an employee’s scope of duties before assigning the employee a task.
• Only the failure to comply with directions that fall within an employee’s area of responsibility can give rise to consequences under employment law, such as written warnings and, where applicable, termination.

The Facts—Dispute Over Gender-Neutral Radiation Protection Instruction

The employee is a qualified chemist employed by the German Federal Maritime and Hydrographic Agency (Bundesamt für Seeschifffahrt und Hydrographie (BSH)), where she had been appointed as a radiation protection officer. The BSH issued two written warnings against the employee and subsequently effected an extraordinary termination with a notice period. The reason: She had failed to amend a radiation protection instruction despite her manager’s direction to do so. Specifically, she was required to revise the document to incorporate gender-sensitive language and to include a particular clarification.

The Decision—No Valid Direction

At first instance, the Labor Court of Hamburg (Arbeitsgericht (ArbG)) had already ruled that the written warnings must be removed from the employee’s personnel file (Ref. No. 4 Ca 62/25) and that the termination was invalid (Ref. No. 4 Ca 53/25). The BSH appealed both judgments to the LAG—without success.

On February 5, 2026, the LAG upheld the first instance judgments. Notably, the court did not address whether the employee could have been validly directed to use gender-sensitive language in the radiation protection instruction. The termination failed at an earlier stage of the legal analysis: The employee was under no obligation to make amendments to the radiation protection instruction at all.

In the present case, no such obligation arose either from the employment contract in conjunction with the job description underlying her position, or from a valid delegation of duties pursuant to section 70(2) of the Radiation Protection Act (Strahlenschutzgesetz) in conjunction with section 43 of the Radiation Protection Ordinance (Strahlenschutzverordnung). In short: Amending the radiation protection instruction simply did not fall within the employee’s scope of duties. Consequently, her refusal to make the amendments could not trigger any consequences.

Key Takeaways

This judgment underscores the importance of determining whether tasks fall within the scope of duties of the relevant employee. Only where this is the case can failure to comply with corresponding directions give rise to consequences under employment law.

Julia Kulmegies is an associate in the Berlin office of Ogletree Deakins.

Teodora Ghinoiu contributed to this article as a research assistant in the Berlin office of Ogletree Deakins.

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

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