EEOC Issues Proposal to Eliminate EEO-1 Report. In conjunction with its public meeting held on July 21, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rulemaking to rescind regulations in place since 1966 requiring covered employers to file annual EEO-1 reports detailing the demographics of their workforces. According to the proposal’s preamble, “EEO Reports are inconsistent with EEO law because they may encourage employers to discriminate against employees who are not considered ‘minorities,’ may promote racial stereotyping, and may encourage employers to engage in discrimination to avoid potential EEOC enforcement actions or to address perceived inequitable outcomes.” The Commission cites cost as a factor, noting, “In the last five years alone, the Commission has incurred over $18,000,000 in federal contractor costs collecting these data.” The proposal states that the Commission still retains the authority to request records relevant to a charge investigation and that “[t]he Commission views its investigative authority as a more reliable, narrowly tailored, and cost-effective tool to support its enforcement efforts.” Comments on the proposal are due on or before August 24, 2026, and the EEOC will hold a public hearing on the matter on August 11, 2026. T. Scott Kelly, James A. Patton, Jr., Kiosha H. Dickey, and Zachary V. Zagger have the details.

House Committee Advances Labor and Employment Bills. On July 21, 2026, the House Committee on Education and Workforce approved two bills of interest to the employer community. The American Franchise Act (H.R. 5267) ensures that, under both the National Labor Relations Act (NLRA) and Fair Labor Standards Act (FLSA), a franchisor is only a joint employer of employees of a franchisee when it exercises “substantial direct and immediate control” over the terms and conditions of employment of those employees. The second bill, the Heat Workforce Standards Act of 2025 (H.R. 6213), would prohibit the Occupational Safety and Health Administration (OSHA) from finalizing and enforcing the agency’s 2024 heat illness and injury prevention proposal, “or any substantially similar standard.” The bills now advance to the House floor.

Senate Democrat, Republican, Team Up on Paid Leave. Senators John Boozman (R-AR) and Kirsten Gillibrand (D-NY) are cosponsoring the More Paid Leave for More Americans Act (S. 5017). The legislation would establish a program administered by the U.S. Department of Labor (DOL) to provide grants to states that enact paid family and medical leave programs. The legislation would also create an “Interstate Paid Leave Action Network” to promote consistency among the states’ paid leave provisions. A similar bipartisan bill has been introduced in the U.S. House of Representatives.

DOL Issues New Wage and Hour Opinion Letters. This week, the DOL’s Wage and Hour Division issued two new opinion letters concerning remote-work situations.

• The first scenario, outlined in opinion letter FLSA2026-9, involves a nonexempt employee who wants to work from home at the beginning of the day, then commute to the office mid-morning (to avoid the early morning traffic), work at the office, then commute home in the mid-afternoon (to avoid the late-afternoon rush hour), and finally end the day working at home. The question presented in the opinion letter is whether the two commutes—because they occur within the workday rather than immediately before and after it—are compensable. The opinion letter concludes that this commuting time “would not qualify as FLSA-covered ‘work,’ as the facts provided indicate that such travel time would be an ‘ordinary’ commute that is a normal incident of employment.”
• The second opinion letter, FLSA2026-10, involves a field service engineer who drives an employer-provided car. The engineer does not report to an office, but rather receives assignments in the morning and spends the day “installing and servicing equipment at client sites.” Pursuant to the opinion letter, the time the engineer spends each morning receiving pages and the day’s assignments is not compensable, because it is “incidental to the use of an employer’s vehicle.” The alternative of requiring the engineer to first report to a central office to receive these assignments “would frustrate the convenience of a program allowing employees who work at multiple job sites per day to drive an employer-provided vehicle directly to and from home.” On the other hand, the time the engineer spends “calling clients to schedule and arrange the details of appointments, including scheduling other field service engineers,” is compensable. Further, after the engineer begins scheduling client visits, he or she must be compensated for the time spent driving to the first client location of the day because the travel occurs during the workday and is not an “ordinary commute.”

Unpacking FDR’s Court-Packing Plan. Eighty-nine years ago this week, the U.S. Senate voted against the Judicial Procedures Reform Bill of 1937 by an overwhelming vote of 70–20. In November 1936, after President Franklin D. Roosevelt won election to his second term of office, he began pushing for a legislative fix to the Supreme Court of the United States, which he viewed as a body frustrating his New Deal agenda. His solution was the Judicial Procedures Reform Bill—colloquially referred to as FDR’s “court-packing plan”—which was introduced in Congress in early February of 1937. The bill would have added a justice to the Supreme Court for every member of the Court over the age of seventy years old who did not retire.

FDR lobbied for the bill during one of his fireside chats and even sent his attorney general, Homer S. Cummings, to testify in favor of the bill before the Senate Judiciary Committee. While FDR had a long way to go to convince legislators of the bill’s merits, his efforts were further undermined by intervening events, such as the death of the bill’s champion, Senate Majority Leader Joseph T. Robinson (D-AR), and the retirement of Associate Justice Willis Van Devanter (giving FDR an opportunity to appoint a justice). Finally, the Supreme Court’s decision in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), in which Associate Justice Owen Roberts switched his position on the constitutionality of the New Deal and voted to uphold the constitutionality of minimum wage laws, undercut FDR’s rationale for increasing the number of justices on the Supreme Court beyond nine. This is why the case is often referred to as the “switch in time that saved nine.”

Quick Hits

• The D.C. Circuit ruled that the NLRB’s “successor bar” rule violates the NLRA when it forces employers to recognize unions despite evidence of lack of majority support.
• The ruling reinforces employees’ rights to choose their representatives or to be union-free and challenges the NLRB’s authority to create additional barriers to change or remove union representation.
• This decision signals increased judicial scrutiny of NLRB decision-making, following the Supreme Court’s shift away from Chevron deference.

The 2–1 decision in Hospital Menonita de Guayama, Inc. v. NLRB, No. 22-1163, held that the “successor bar” is “inconsistent” with the NLRA because it effectively requires “successor employers to recognize and bargain with an incumbent union, regardless of whether that union enjoys the support of a majority of employees.”

The decision comes after the Supreme Court of the United States vacated a ruling by a separate D.C. Circuit panel upholding the successor bar and remanded the case for further consideration in light of the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo. That Supreme Court decision overturned the longstanding Chevron deference to agency interpretations of statutory ambiguities, holding instead that federal courts must exercise independent judgment in deciding whether an agency acted within its statutory authority.

The Successor Bar Rule

The NLRB’s successor bar rule, last upheld by the Board in a 2011 decision, effectively compels a successor employer—one that acquires a business and hires a majority of its workforce from the predecessor’s employees—to recognize and bargain with the incumbent union for up to one year. The rule creates an irrebuttable presumption of majority support, barring any challenge to the union’s status by the employer, the employees, or even a rival union. Under the rule, no amount of evidence that employees have actually abandoned the union can overcome the bar.

Successor Bar Violates NLRA

Writing for the D.C. Circuit majority, Judge Neomi Rao found that the D.C. Circuit’s prior ruling had deferred to the NLRB’s conclusion that the successor bar was consistent with the NLRA. Following Loper Bright, the court “must independently assess the [employer’s] legal claim that the successor bar contravenes the Act.”

Under that analysis, the court held that the successor bar is “inconsistent” with the NLRA because it suspends two core statutory protections: employees’ Section 7 right to choose their own representative and Section 9’s requirement that a union hold majority support to serve as the exclusive bargaining agent.

The successor bar effectively “nullifies” those protections because it requires a successor employer to bargain with a union “even if the union indisputably lacks majority support.” The court noted that in the case at issue, the NLRB had refused to consider the hospital employer’s evidence that most of its employees had rejected the union, with one bargaining unit unanimously denouncing it as its representative.

Central to the court’s reasoning was the statutory structure itself. The NLRA “generally requires majority representation” and allows employees, employers, and other unions to test a union’s majority support through an election petition, except when a valid election has been held in the preceding twelve months. Since the U.S. Congress provided only a single time bar to challenging a union’s majority support (the twelve-month limitation), the NLRB lacks authority to create additional irrebuttable bars.

The court also rejected the NLRB’s policy justifications. The NLRB had argued the rule promoted industrial peace and stability, but the court found these general purposes could not override the NLRA’s specific protections. Instead, the court found that the successor bar favors incumbent unions over employees and employers. The court stated, “[g]eneral concerns for industrial stability cannot save the lawfulness of the successor bar, which is really a rule of union stability that comes at the expense of employee freedom of association and self-organization.”

Post-Loper Bright Scrutiny of NLRB Rules

The decision confirms that courts will independently assess whether Board-created policy rules exceed statutory authority, rather than deferring to the NLRB’s policy rationale, considering Loper Bright. Other NLRB doctrines built on similar “reasonable policymaking” foundations may face fresh challenges.

Notably, the “successor bar” rule at issue in this case was adopted through the NLRB’s adjudicative process (i.e., a 2011 NLRB decision), not through formal notice-and-comment rulemaking under the Administrative Procedure Act (APA). Thus, the decision could influence how courts assess NLRB decisions and the amount of deference they give to the Board’s rationale as to its decisions.

However, Senior Circuit Judge A. Raymond Randolph dissented, arguing the D.C. Circuit’s prior decision did not rest on Chevron deference since it did not defer to NLRB’s interpretation of a statutory ambiguity. Instead, the NLRB’s decision relied on the NLRA-specific principle that the NLRB possesses primary responsibility for developing national labor policy—a principle he contended survives Loper Bright.

Key Takeaways

The D.C. Circuit’s ruling invalidating the successor bar rule significantly shifts the dynamic for initial negotiations for a collective bargaining agreement (CBA) following an asset acquisition or service-contract takeover. Following these changeovers,  incumbent unions, at least those in the D.C. Circuit, will no longer be protected with an irrebuttable presumption of majority support for a year following an acquisition, and the employees or the new employer may question whether the incumbent union truly has majority support. More broadly, the ruling indicates how courts may scrutinize NLRB rules adopted through the Board’s adjudicatory authority following Loper Bright. Employers can expect additional challenges arguing that the NLRB lacks legal authority to impose certain Board-created policy rules.

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

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Quick Hits

• In Bergin v. New York State Unified Court System, the Second Circuit held that, to bring a failure to accommodate claim under Title VII of the Civil Rights Act of 1964, an employee must show that the need for a religious accommodation provided motive for an adverse employment decision.
• The court’s decision revokes the Second Circuit’s previous prima facie test for a Title VII claim of failure to accommodate religion and adopts the test set forth in the 2015 Supreme Court of the United States’s decision in EEOC v. Abercrombie & Fitch Stores, Inc.
• The Second Circuit ruling reinforces that, to establish a prima facie case of failure to provide a religious accommodation, a plaintiff must show that he or she required an accommodation of religious practice and that the employer’s desire to avoid the required accommodation was a motivating factor in an adverse employment action.

Title VII prohibits employers from firing, disciplining, or discriminating against employees because of their religious belief, practice, or observance. It requires employers to provide a reasonable religious accommodation, unless it would impose an undue hardship on the employer, meaning a substantial cost or difficulty.

Background on the Case

Jessica Bergin, a court officer for the New York Unified Court System (UCS), requested a religious exemption from UCS’s requirement to receive a COVID-19 vaccination by October 18, 2021. She submitted an initial written request in September 2021, stating her religious objections. USC asked her to fill out a supplemental form with additional questions about the request, and she returned that form without answering many of the questions. After UCS denied her request, she submitted a new form with the questions answered in January 2022. USC responded that the new submission would not be considered. It placed her on administrative leave and then terminated her employment in April 2022 for failure to comply with the vaccination requirement. UCS ended its vaccination requirement in February 2023 and reinstated Bergin’s employment in June 2023. Bergin sued for religious discrimination under Title VII.

In November 2024, the U.S. District Court for the Eastern District of New York granted partial summary judgment for Bergin, holding that Bergin had established a prima facie case that she “(1) held a bona fide religious belief conflicting with a work requirement, (2) informed her employer of that belief, and (3) was disciplined for failure to comply with the requirement.” The district court held that the employer did not demonstrate that granting an accommodation would constitute an undue hardship. It also found that permitting the employee to submit an untimely supplemental form would constitute undue hardship on the employer.

UCS appealed, arguing that the district court applied the wrong prima facie test to the case—that the court should have taken into account the test articulated in the Supreme Court of the United States’ decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., issued in 2015. The Second Circuit agreed.

Second Circuit Ruling

The Second Circuit vacated the district court’s ruling and remanded the case for further proceedings on the basis that the district court applied the wrong prima facie test to the failure to accommodate religion claim. It stated that, under Title VII, to sue for failure to accommodate a religious belief or practice, plaintiffs must demonstrate that they required an accommodation of their religious practice and that the employer’s desire to avoid the required accommodation “was a motivating factor” in the employer’s adverse employment decision, such as firing or refusing to hire.

The Second Circuit relied on Abercrombie, which found that an employer violates Title VII if it refuses to hire a job applicant to avoid accommodating a religious practice. The Second Circuit stated that “[t]he Supreme Court explained that failure-to-accommodate-religion claims fall within Title VII’s disparate treatment provision, which ‘prohibits certain motives, regardless of the state of the actor’s knowledge.’” Thus, the key inquiry is the employer’s motive for the adverse employment action, not whether the employee informed the employer of the need for a religious accommodation. The court explained that, although knowledge of the need for an accommodation may be evidenceof motive, the absence of such evidence is not dispositive.

The court officer contended that Abercrombie did not apply to her case because it related to failure to hire, rather than wrongful termination, but the Second Circuit rejected that argument, stating that such argument “runs headlong into the statutory text [of Title VII], which treats hiring and firing alike.”

The Second Circuit’s jurisdiction includes Connecticut, New York, and Vermont.

Next Steps

Employers in the Second Circuit faced with failure to accommodate religion claims may want to assess the case under the Abercrombie test, rather than the previously prescribed Second Circuit test. The Second Circuit decision suggests that, if a plaintiff cannot establish the factors under the Abercrombie test, the case may be dismissed prior to the employer having to establish its undue hardship defense.

Employers may wish to train managers to comply with state and federal laws prohibiting religious discrimination, including the fact that an employee is not required to inform the employer of the need for a religious accommodation to trigger the obligation to accommodate.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will post updates on the Connecticut, Employment Law, Leaves of Absence, New York, and Vermont blogs as additional information becomes available.

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

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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Quick Hits

• The UK’s Office for Equality and Opportunity is seeking public comments on how equal pay laws can do more to extend protections for ethnic and disabled workers and increase pay transparency, in a move indicating that the government wants the UK’s pay equity policy framework to be competitive with EU member states’ implementation of the EU Pay Transparency Directive.
• The consultation has two main phases: identifying weak points within the current system and extending existing rights and protections.
• The consultation closes on October 27, 2026. A full analysis of all the responses will be published after the close date.

The UK’s consultation is a result of the government’s Make Work Pay plan, which is committed to extending the rights of ethnic and disabled workers. Additionally, this is part of a wider effort to increase salary transparency across the UK by including salary information in job postings. Currently, there is still ambiguity over whether this means exact amounts or salary ranges.

Phase one of the consultation will target outdated, reactive, and costly structures. The government has proposed reintroducing equal pay questionnaires. This would make the equal claims process more accessible, as it would help employees understand if they in fact have a claim.

The government also has proposed creating a new Equal Pay Regulation and Enforcement Unit within the Office for Equality and Opportunity. This body would be responsible for enforcing equal pay obligations and demand audits when they believe discrimination regarding pay is occurring.

A lack of transparency surrounding pay exists in the UK. This leads to job candidates applying to roles they would not have considered if they were informed of the salary at the start. It also can lead to unequal pay, if those deciding levels of payment may show bias against women, ethnic minorities, or those with disabilities. Finally, ambiguity surrounding pay can lead to equal pay claims being brought to tribunals. More clarity surrounding pay would not only improve equality in compensation, but might also ease the burden on employers and the legal system long term.

Phase two of the consultation is about extending and improving the existing regulations and legal protections. The focus is to increase protections against pay discrimination based on sex, race, and disability. There is a particular emphasis on ensuring that the protection of equal pay rights for ethnic minorities and disabled people matches the current system of protection based on sex.

Furthermore, the government has indicated that employers can do more to foster pay equity in outsourcing arrangements. A disproportionate amount of contract workers (or outsource workers) are female, disabled, or from ethnic minority backgrounds. These workers typically cannot compare their salaries with those who are directly employed, and a significant pay gap exists. Thus, the government suggested that employers take more accountability in ensuring pay equity in outsourcing arrangements.

The UK requires organizations with 250 or more employees to calculate and publish key pay metrics annually, showing the difference in average earnings between men and women.

The EU Pay Transparency Directive (Directive (EU) 2023/970) provides crucial context for the UK’s initiatives. One of the key areas of focus for the EU directive is increasing pay transparency both in the pre-employment stage and during employment. It is evident from the UK government’s proposed changes that it wants the framework in the UK to be competitive and clear alongside EU member states.

The UK government’s proposals at this stage remain conservative when compared to the EU Pay Transparency Directive’s baseline requirements. However, as an increasing number of EU member states publish drafts and implement the directive, we may see more harmony with the EU directive in the UK’s policy.

Next Steps

After the October 27, 2026, deadline, there will be a staggered approach to suggested structural changes, giving employers enough time to make necessary changes. Employers in the UK may wish to examine their current policies and practices regarding pay equity and job postings to determine any changes that may need to be made in the future, depending on the UK’s final legal regulations.

Global employers with employees in the UK that are trying to achieve a consistent approach across their whole business may wish to examine their current policies in the UK, as this consultation shows the likely direction of change in the law.

Ogletree Deakins’ London office, Global Reorganizations Practice Group, Pay Equity Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will post updates on the Cross-Border, Global Reorganizations, Pay Equity, United Kingdom, and Workforce Analytics and Compliance 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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After the employment termination, employers may wish to continue monitoring for potential workplace safety threats and have strategic communication and crisis-response plans in place to address them.

Quick Hits

• A pre-termination risk assessment and a carefully planned employment termination meeting can protect the safety and dignity of everyone involved.
• Prompt revocation of a departing employee’s system and building access, along with a coordinated return of company property, can help prevent security vulnerabilities.
• Thoughtful communication of potential threats, thorough documentation of the offboarding process, and the use of threat-assessment teams or protective measures play a critical role in addressing risk in high-threat employment terminations.

Conducting a Pre-Termination Risk Assessment

Before initiating any employment termination meeting, employers may want to conduct a thorough risk assessment. This means reviewing the employee’s personnel file, disciplinary history, and any prior complaints or incidents involving threats, intimidation, or volatile behavior. Human resources, legal counsel, and, where appropriate, security professionals would all collaborate to evaluate whether the termination event presents an elevated safety risk. Factors such as the employee’s known temperament, access to sensitive areas or systems, history of grievances, and any prior references to workplace violence or retaliation would all be considered as part of this evaluative process. This advance planning allows an organization to tailor the offboarding process to the individual’s specific risk profile and put appropriate safeguards in place before the termination conversation even begins.

Planning the Termination Meeting

The employment termination meeting itself should ideally be conducted in a way that minimizes the potential for confrontation. First, consider selecting a private, neutral location for the meeting, such as one near an exit and away from the general workforce. Second, schedule the meeting at a time when the employee can leave the premises with minimal audience, such as late in the day or at the end of a shift. Third, at least two company representatives should be present, typically a manager and a human resources professional. In higher-risk situations, consider having security personnel nearby but not visibly present in the room, as an overt security presence can unnecessarily escalate tensions. If an organization does not have security personnel, local police can be alerted to the potential for a safety event and often will agree to keep a squad car in the vicinity. Finally, consider scripting the conversation to be brief, professional, and compassionate. The decision should be clearly communicated, and relevant documentation, such as a termination-of-employment letter, can be provided at this time (perhaps with a follow-up email or mail transmittal). Company representatives will want to avoid engaging in debates about the merits of the employment termination, as this may lead to an escalation of the conversation.

Access Revocation

One of the critical steps in the offboarding process is the prompt revocation of the discharged employee’s access to company systems, facilities, and information. This should be coordinated in advance with IT personnel so it can be executed simultaneously with, or immediately following, the employment termination meeting. Access badges, key cards, building keys, and parking credentials should be collected during the meeting if possible. IT will coordinate disabling the employee’s login credentials, email accounts, remote access capabilities, and access to cloud-based platforms. IT can typically also disable key cards and/or access badges remotely if the employee does not have those items available to hand in at the time of the meeting. If the employee had access to proprietary or confidential information, IT will likely conduct a forensic review to determine whether any data has been improperly downloaded or transferred. The speed and thoroughness of these steps are essential, as delays in revoking access can create unnecessary vulnerabilities. These unwanted delays may also complicate potential breach-of-confidentiality claims or an entity’s enforcement of related restrictive covenants, should it later decide to pursue such claims.

Managing the Return of Physical Company Property

It is standard practice for employers to have clear, consistent processes for retrieving company property from discharged employees. This property includes laptops, mobile devices, identification badges, uniforms, tools, car keys, and any other company-issued items. Using the pre-termination risk assessment as a guide, employers may want to arrange for the return of property during the employment termination meeting itself. If the employee needs to retrieve personal belongings from a workspace or locker room, it is recommended that a manager or security representative accompany the employee. From a safety perspective, it is not advisable for a discharged employee to have unattended access to the premises. In situations involving a higher safety risk, it is likely preferable to pack and ship the employee’s personal items rather than allow the employee to return to the workspace. Similarly, the entity will need to make shipping or drop-off arrangements for any company property that a discharged employee has at home or off-site.

Communicating Potential Threats to the Workforce

One of the more challenging aspects of a high-risk employment termination is deciding what, when, and how to communicate with the remaining workforce. Employers will need to strike a delicate balance between transparency and discretion. On the one hand, employees have a legitimate need to know about potential safety threats and can be part of safety solutions if properly informed of a situation (e.g., not holding a secure door open for a recently discharged employee). On the other hand, employers may wish to avoid escalating a situation or causing unnecessary alarm.

When a credible threat has been identified, whether through statements by the discharged employee, behavioral warning signs, or information from law enforcement, the organization will want to promptly notify relevant personnel. The scope of the communication should be guided by the nature and specificity of the threat. For example, a general, nonspecific concern may warrant a reminder to all staff about existing security protocols, such as reporting unfamiliar visitors, keeping exterior doors locked, and knowing the location of emergency exits. A more specific or imminent threat may require direct notification to targeted individuals, coordination with law enforcement, and heightened physical security measures.

Communications should be factual, measured, and focused on what employees need to do to be aware and stay safe. For example, a company-wide communication might state that a former employee is no longer authorized to be on the premises and that any sightings should be reported immediately to security. Ideally, front desk staff, receptionists, and building security will be provided with the individual’s name and photograph so they can identify and intercept any unauthorized attempts to enter the premises.

Perhaps most important is reminding employees of their ability and permission to call 911 in emergency situations. Often, employees feel they need to ask for permission to call emergency services while at work, or that only managers are allowed to do so. Critical response time can be lost if employees do not understand their role in contacting emergency services (and their right to do so) in the event of an imminent threat.

Leveraging Threat-Assessment Teams

Larger organizations may want to consider establishing or consulting a threat-assessment team. These multidisciplinary teams, typically composed of representatives from human resources, legal, security, and law enforcement, as well as mental health professionals, are trained to evaluate the likelihood and severity of potential workplace violence. A threat-assessment team can help determine whether a discharged employee poses a genuine danger and can recommend specific, proportionate responses. For smaller organizations that lack the resources to maintain an internal team, outside consultants and local law enforcement agencies often provide threat-assessment services.

Utilizing Protective Measures When Warranted

In cases where a discharged employee has made explicit threats or has a documented history of violent behavior, employers are encouraged to promptly pursue protective measures. Depending on the jurisdiction, this may include seeking a restraining order on behalf of the company and its employees. Employers may also consider coordinating with local law enforcement to ensure that law enforcement is aware of situations and can respond swiftly if needed. Physical security enhancements, such as increased security patrols, temporary surveillance measures, or modifications to building access points, may also be appropriate on a case-by-case basis.

Relatedly, employers might consider proactively collaborating with local law enforcement so that, if there is a workplace safety event (whether a fire, inclement weather, or a threat of violence), first responders are familiar with the entity’s physical premises, emergency contacts, and leadership personnel. Local law enforcement teams will likely be able to respond more quickly and effectively if these relationships are already in place.

Documenting Everything

Throughout the employment termination/offboarding process, meticulous documentation is important. It is best practice for employers to record the details of the employment termination meeting, including what was said and how the employee responded. Employers may also consider documenting the revocation of physical and electronic access, the return of company property, and any post-termination communications with the former employee. If a threat assessment was conducted, it is recommended that employers preserve the analysis and conclusions. If communications were made to the workforce about a potential threat, employers are encouraged to keep copies of those communications. This documentation serves multiple purposes: it demonstrates that the employer acted reasonably and in good faith, it supports any future legal proceedings, and it provides a factual record that can be referenced if the situation evolves.

Providing Workforce Support

An employment termination, particularly a high-profile or contentious one, can be unsettling for the employees who remain in the workforce. Employers should be prepared to address concerns and provide support. This may include reminding employees of available employee assistance program (EAP) resources, holding a brief team meeting to address questions without divulging confidential details about the employee and the specifics of the employment termination, and reinforcing the organization’s commitment to a safe workplace. Encouraging employees to report any concerning contacts or communications from the former employee, without fostering a climate of fear, is also an important part of the post-termination safety strategy.

Key Takeaways

Offboarding a discharged employee is far more than an administrative exercise. When approached with careful planning, clear communication, and a commitment to safety, the process protects the organization, its people, and even the departing employee. By conducting pre-termination risk assessments, promptly revoking access, communicating threats responsibly, and documenting each step, employers can navigate this difficult terrain with confidence and professionalism.

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

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Quick Hits

• Employers must comply with obligations related to: (i) the prevention of discrimination and violence against women, (ii) NOM-035-STPS-2018 Psychosocial Risk Factors, and (iii) the Chair Law (“Ley Silla”).
• The government has increased workplace investigations, raising the importance of ensuring that employers are in compliance with employment-related laws. 

Key Obligations

Prevention of discrimination and violence against women. As a result of several amendments to guarantee an environment free of discrimination and violence against women, on January 15, 2026, a decree was published in the Official Gazette of the Federation (Diario Oficial de la Federación (DOF)) reforming several laws, including the Federal Labor Law. Employers are obligated to:

• take actions to prevent and ensure that work environments are free from discrimination and violence;
• guarantee substantive equality between women and men;
• provide periodic training for employees on the prevention of discrimination and violence against women in the workplace; and
• obtain evidence for the above-mentioned trainings modules.

Protocol to prevent gender-based discrimination and address cases of violence, harassment, or sexual harassment, as well as to eradicate forced and child labor. Per Article 132 of the Federal Labor Law, employers must implement a protocol to prevent gender-based discrimination, address violence, harassment, and sexual harassment, and eradicate forced and child labor. This is a statutory duty, and its absence may result in sanctions during workplace inspections.

The protocol ideally includes:

• a zero-tolerance statement covering discrimination, violence, harassment, sexual harassment, forced labor, and child labor;
• definitions of all prohibited conduct;
• confidential complaint channels (red line phones);
• an objective and independent investigation procedure; and
• anti-retaliation protections.

NOM-035-STPS-2018: Psychosocial Risks. This Official Mexican Standard (Normas Oficiales Mexicanas (NOM)) seeks to identify, analyze, and prevent psychosocial risks and promote a favorable organizational environment. Employers are required to:

• implement a psychosocial risk policy in place and document its renewals annually;
• incorporate and adjust in the psychosocial risk policy the administration and distribution of the workweek of the employees, per the workweek reduction amendment;
• update the psychosocial risk policy in order to incorporate matters related to the prevention of discrimination and violence against women in the workplace; and
• conduct psychosocial risk evaluations every two years.

Chair Law (“Ley Silla”). Obligations related to this amendment have been mandatory for employers since June 2025. This amendment seeks to recognize the right of employees to have adequate seating during their work shift if their activities allow it. The following are the most relevant obligations:

• providing enough chairs with backrests for employees if their activities allow it;
• determining periodic rest breaks; and
• updating internal work regulations to incorporate seating and rest breaks.

Ogletree Deakins’ Mexico City office will continue to monitor developments related to the workweek reduction, anti-discrimination protocols, psychosocial risk compliance, and the Chair Law, and will provide updates on the Cross-Border, Mexico, Wage and Hour, Workplace Safety and Health, and Workplace Violence Prevention blogs as enforcement trends evolve.

Pietro Straulino-Rodríguez is the managing partner of the Mexico City office of Ogletree Deakins.

Natalia Merino Moreno is an associate in the Mexico City office of Ogletree Deakins.

María José Bladinieres is a law clerk in the Mexico City office of Ogletree Deakins.

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Quick Hits

• The NJDOL has issued long-awaited guidance/FAQs on recent NJFLA amendments, which became effective on July 17, 2026.
• The guidance clarifies that employees receiving TDI or FLI benefits, whether through the state or a private insurance plan, are entitled to job protection for as long as they receive those benefits while on an otherwise unpaid leave of absence.
• The job protection is separate from reinstatement rights already provided under the NJFLA and FMLA, and there are no minimum employer size requirements or work history requirements.

Job Protection for Employees Receiving TDI/FLI Benefits

On January 17, 2026, then-Governor Phil Murphy signed into law amendments to the NJFLA. Under the new NJDOL guidance, employees who receive TDI or FLI benefits are entitled to up to twenty-six weeks of job-protected leave based solely on their receipt of those benefits, regardless of whether their leave is separately covered by the NJFLA or FMLA.

Specifically, employees receiving TDI or FLI benefits (whether through the state or a private insurance plan) must be reinstated to their jobs when their leaves end, or to equivalent jobs with the same pay, benefits, seniority, and other terms of employment. There are no minimum employer size requirements or work history requirements to receive this protection. Instead, it depends only on whether the employee qualifies for TDI or FLI benefits, which is based on recent earnings.

Job Protection Applies to Leave Commenced Prior to Effective Date

According to the FAQs, the new job protection applies to employees receiving TDI/FLI benefits whose leaves commenced before July 17, 2026. Additionally, while employees wait to hear whether they are eligible to receive TDI/FLI benefits, employers must assume that an employee will be eligible until a determination has been made otherwise.

Medical Leave Benefit Exceeds NJFLA and FMLA

The recent guidance eliminates any ambiguity as to whether receipt of TDI/FLI benefits creates a new job-restoration right. There was uncertainty regarding whether the receipt of benefits alone could provide a basis for job protection, since the amendments state, “nothing in this section or any section … shall be construed as increasing, reducing, or otherwise modifying any entitlement provided to a worker by the provisions of the [NJFLA] to be restored to employment by the employer after a period of family temporary disability leave.” Despite that language, the NJDOL’s new guidance makes clear that the amendments did create a new leave entitlement based solely on receipt of TDI/FLI benefits, regardless of whether an employee is covered under the NFJLA or the FMLA.

TDI/FLI Leave Coverage Limits

For context, TDI/FLI benefits provide employees with up to:

• twenty-six weeks of benefits during a period of leave taken for their own health conditions;
• twelve weeks of benefits for caregiving and bonding leave (in a twelve-month period); and
• twenty-two to twenty-four weeks of benefits for maternity (disability plus bonding) leave.

No Minimum Size Requirements for TDI/FLI Leave

Unlike leave availability and job protection under the NJFLA and FMLA, there are no minimum employer size or work history requirements for employees to receiveTDI/FLI job-protected leave benefits. This lack of minimum requirements means that employers must provide job protection to any employee who receives TDI/FLI benefits, regardless of the employer’s size or whether the employee meets the NJFLA’s or FMLA’s tenure or hours-worked requirements.

Lowered Eligibility Requirements for NJFLA Job-Protected Leave

The NJDOL reminded employers that the amendments have lowered the eligibility requirements for NJFLA leave itself, which provides up to twelve weeks of job-protected leave in a twenty-four-month period to bond with a child or care for a family member with a serious health condition.

As of July 17, 2026, the NJFLA applies to employees at employers with fifteen or more employees worldwide (down from thirty employees). Further, employees now need only three months of work history with their employers (down from twelve months), and only 250 hours worked in the past twelve months (down from 1,000 hours).

Next Steps

Employers may want to review their existing policies to incorporate these new requirements. The NJDOL advises that additional guidance is forthcoming and that formal rulemaking could change policies, procedures, and forms.

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

In addition, the Ogletree Deakins Client Portal covers legal developments in state and major locality leave laws, including New Jersey’s paid and unpaid family and medical leave requirements. Premium-level subscribers have access to comprehensive updated law summaries and policies; 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.

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Quick Hits

• USCIS will continue to accept adjustment of status filings based on the Final Action Dates chart in August 2026 and will not use the Dates for Filing chart.
• Many categories under the Final Action Dates chart have moved forward one month.
• Visas are unavailable for the remainder of the fiscal year for EB-2 applicants from India.

Final Action Dates

The final action dates across many categories have advanced slightly.

• EB-1: The final action dates for China-mainland advance by one month while the dates for India remain the same. All other countries continue to be current.
• EB-2: The final action dates for India EB-2 are unavailable for the fiscal year. All other countries remain the same.
• EB-3: All countries advance except for India and Philippines.
• EB-4: All countries have advanced from September 15, 2022, to October 15, 2022.
• EB‑4 Certain Religious Workers: This category has advanced from September 15, 2022, to October 15, 2022.
• EB-5: No movement is shown.

Source: U.S. Department of State, August 2026 Visa Bulletin, Final Action Dates Chart

Key Takeaways

With some advancement in final action dates, more applicants will become eligible to complete the final step of the permanent residency process. As visas became unavailable in July, applications in the India EB-2 category will not be processed by USCIS until the new fiscal year in October 2026.

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

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Quick Hits

• As of July 1, 2026, employers in Washington State with fifteen or more employees anywhere that inquire about or consider criminal history in employment decisions have significant new requirements under the Washington Fair Chance Act.
• The law applies to all sources of criminal history information.
• The amended law expands protections to current employees.
• The amendments also expand employer obligations to notify employees of their rights.

The WFCA amendments also expand employer obligations to notify employees of their rights.

Key Elements and Exemptions

The WFCA continues to prohibit covered Washington employers from maintaining a policy or practice that automatically excludes applicants with a criminal record. It also retains the prohibition against job advertisements that exclude people with criminal records from applying. For example, statements in job postings like “no felons” or “no criminal background” remain illegal. Both the original law, enacted in 2018, and the amendment apply to all criminal history, regardless of whether it was obtained from a consumer reporting agency (CRA) or another source.

The WFCA does not apply to employers that:

• hire individuals who will or may have unsupervised access to children under the age of eighteen or other vulnerable individuals, as defined by applicable law;
• are expressly permitted or required under federal or state law to inquire into, consider, or rely on criminal records for employment purposes;
• are law-enforcement agencies and criminal-justice agencies as defined under Washington law;
• are seeking nonemployee volunteers;
• are required to comply with the rules or regulations of a self-regulatory organization under Section 3(a)(26) of the Securities Exchange Act of 1934; or
• are hiring for positions under a federal contract that specifically prohibits those with criminal records from working under that contract.

Timing Restrictions

The prior law prohibited an employer from seeking any information, orally or in writing, about an applicant’s criminal record only until the employer determined that the person is otherwise qualified for the job.

The amended WFCA shifts the timing of when covered employers may act. An employer may not inquire about or obtain criminal history information, whether on an application or directly from the individual, or reject an applicant for failing to disclose criminal history, until it has determined that the person is otherwise qualified and extended a conditional offer of employment.

Early Rights Notice

If an applicant voluntarily discloses information about criminal history during an interview, or if an employer discloses to an applicant that the position will be subject to a background check following a conditional offer, the employer must immediately provide a written disclosure of certain rights under the law. The attorney general has not yet released a model form that satisfies this requirement. In addition to this disclosure, employers must provide the attorney general’s updated “Washington Fair Chance Act Guide for Employers and Job Applicants.” This is a relatively unique aspect of the new law.

Newly Prohibited Inquiries and Considerations

The amendments also narrow the criminal history employers may seek or consider. Under the amended WFCA, employers may not, regardless of timing, consider or take a tangible adverse employment action based on an arrest record—unless an adult is out on bail or released pending a trial—or a juvenile conviction record.

Further, the WFCA now expressly applies to all tangible adverse employment actions, newly defined as “a decision by an employer to reject an otherwise qualified job applicant, or to terminate, suspend, discipline, demote, or deny a promotion to an employee.” As the law was previously directed at hiring decisions, this is a considerable expansion of its protections.

Adverse Action Process

The amended WFCA introduces a formal two-step process for taking adverse actions based on criminal history, including new notice and assessment requirements.

Pre-Adverse Action: Legitimate Business Reason Analysis Required

First, before deciding to take any adverse action, employers must analyze whether a legitimate business reason supports an adverse employment decision. A legitimate business reason exists when, based on all available information, the employer has a good faith belief that the nature of the criminal conduct will (a) negatively impact the individual’s fitness or ability to perform the job (the fitness prong), or (b) will cause harm to people, property, business reputation, or business assets (the harm prong). The attorney general’s office has confirmed that both prongs of this assessment require the employer to consider and document the following criminal evaluation factors:

1. the seriousness of the conduct underlying the conviction;
2. the number and type of convictions;
3. the time elapsed since the conviction, excluding periods of incarceration;
4. any verifiable information relating to the individual’s rehabilitation, good conduct, work experience, education, and training;
5. the specific duties and responsibilities of the position; and
6. the place and manner in which the position will be performed. 

Pre-Adverse Action: Letter and Waiting Period

Before taking a tangible adverse employment action based on criminal history, employers must provide the applicant or employee with written notice of the preliminary decision and identify the record(s) on which it is based. The employer must then wait at least two business days before finalizing any decision, giving the individual an opportunity to correct or explain the record or provide information regarding rehabilitation, good conduct, work experience, education, and training. Note that if the information was obtained from a CRA, employers must comply with the longer federal Fair Credit Reporting Act waiting period, generally five business days.

Adverse Action Letter

The post-decision notice is perhaps the most significant change introduced by the new law and is another relatively unique requirement. After the waiting period, the employer must reassess its preliminary decision using the criminal evaluation factors and all available information, including any response received from the individual. If the employer determines that adverse action remains warranted, the employer must prepare a written decision that includes specific documentation of its:

• reasoning and assessment of each criminal evaluation factor, including the impact of the conviction on the position or business operations; and
• consideration of the individual’s rehabilitation, good conduct, work experience, education, and training.

Stricter Enforcement

The attorney general retains investigation and enforcement authority. The amendments eliminate the prior requirement that the attorney general take a progressive approach before pursuing enforcement action. Education and warning steps, previously mandatory, are now discretionary. Penalties range from $1,500 for a first violation to $15,000 for third and subsequent violations per complainant, payable to the complainant or, if none is identifiable, to the attorney general. Following a first violation, the attorney general may also pursue legal action seeking unpaid wages, unpaid penalties, damages, and attorneys’ fees. The amendments do not create a private right of action.

Employers must also comply with the Washington Fair Credit Reporting Act (WFCRA) when obtaining information from a CRA. The WFCRA requires an employer to provide the individual with a written summary of rights under that law, the name, address, and telephone number of the CRA, and a reasonable opportunity to dispute or respond to the report. These requirements are in addition to those imposed by the federal Fair Credit Reporting Act (FCRA). If the employer proceeds to final adverse action, only federal FCRA requirements apply under the old law, as Washington did not previously impose state-specific pre-adverse or adverse action requirements unique to criminal history information.

Seattle employers: Seattle employers have been required to comply with the Seattle Fair Chance Employment Ordinance since 2013. The WFCA now closely tracks the Seattle ordinance, but there are potentially significant differences. For example, Seattle still allows employers to seek criminal history information before a conditional job offer, Washington’s exemptions are a bit broader than Seattle’s, and Washington has not passed regulations or published guidance such as the Questions and Answers Seattle has published. Although Washington’s law is generally more protective of applicants and employees, the Seattle Office of Labor Standards has confirmed it will continue to investigate complaints and enforce its Fair Chance Employment Ordinance. The Washington attorney general’s office has declined to publish further guidance—other than what is already available on its web page—or take a position on preemption at this time. Accordingly, covered employers with Seattle positions must comply with both state and local laws.

Ogletree Deakins’ Seattle office and Background Checks Practice Group will continue to monitor developments and will post updates on the Background Checks and Washington blogs as additional information becomes available.

Washington and Seattle Notice of Fair Chance Requirements, pre-adverse action letters, adverse action letters, and law summaries (timing, arrests, convictions, pre-adverse action process, adverse action process) are available on the Ogletree Deakins Client Portal to Premium-level subscribers. For more information on the Client Portal or a Client Portal subscription, reach out to clientportal@ogletreedeakins.com.

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Quick Hits

• The EEOC has proposed rescinding federal EEO reporting requirements, including mandatory annual EEO-1 filings.
• As of the publication date of this article, the proposed rule has not yet been formally published in the Federal Register and remains subject to public comment.
• Current reporting obligations remain in effect unless and until the EEOC issues a final rule; the EEOC would retain authority to seek relevant records during investigations.

The NPRM, titled, “Removal of Reporting Requirements,” seeks to rescind and remove the requirements to file EEO reports, specifically the filing of EEO-1, EEO-2, EEO-3, EEO-4, EEO-5, and EEO-6 reports and the report-specific recordkeeping and record preservation requirements. The Commission also states that it intends to incorporate previously proposed references to the Pregnant Workers Fairness Act (PWFA) into 29 CFR Part 1602 as part of any final rule issued at the conclusion of this rulemaking.

According to the NPRM, the EEOC “has preliminarily determined that the reports are inconsistent with equal employment opportunity law and potentially unconstitutional” and that “the data collected is not narrowly tailored, is unnecessary to enforce anti-discrimination laws, and at a minimum, that any marginal benefits are outweighed by the substantial burdens imposed on both employers … as well as the Commission.”

The EEOC unveiled the NPRM shortly after a public meeting during which the Commission voted 2–1 to move forward with the proposal. Chair Andrea Lucas and Commissioner Brittany Bull Panuccio voted in favor, while Commissioner Kalpana Kotagal voted against the proposal.

The Proposed Rule

If finalized, the proposed rule would eliminate the EEO demographic reporting requirements in 29 CFR Part 1602, including employers’ annual EEO-1 reports (required of private employers with at least one hundred employees, or federal contractors with at least fifty employees and contracts amounting to at least $50,000) on workforce filing demographic data organized by job category, race/ethnicity, and sex, and the related demographic surveys for unions (EEO-3), state and local governments (EEO-4), and public school systems (EEO-5). The EEOC noted that it had not actually collected EEO-2 data related to joint labor-management committees that control apprenticeship programs since 1981 or EEO-6 data related to institutions of higher education since 1993.

The NPRM estimates that the proposed action would generate approximately $278.4 million in annual cost savings to private employers, state and local governments, local unions, public elementary and secondary school systems and districts, and the Commission.

The Legal Rationale

The EEOC rests its rationale for rescinding EEO reporting on its preliminary conclusion that wholesale collection of demographic information through the EEO reports—unconnected to any specific allegation of discrimination—may hinder effective enforcement of the EEO laws, and may violate the U.S. Constitution. The EEOC’s rationale centers on four arguments:

“Impermissible Focus on ‘Minorities’ and Women”

The Commission contends that the EEO reports were born of a framework focused on discrimination against “minority groups” and women. The agency contends this framework is in tension with the Supreme Court of the United States’ holding in Ames v. Ohio Department of Youth Services, which rejected a heightened standard for members of majority groups to bring claims under Title VII of the Civil Rights Act of 1964. The NPRM states that predetermined racial categories may prioritize combating discrimination against certain groups over others.

Racial Categories Promote “Stereotyping”

The NPRM challenges the usefulness of the race classifications used in EEO reporting, stating they are “largely arbitrary and not based on the EEOC’s enforcement needs.” The NPRM states that the classifications may promote unlawful race- or sex-based stereotyping and conflict with the principle that “employer actions should be colorblind.”

“Misuse of Data”

The NPRM expresses concern that employers may mistakenly believe the EEOC will target them for enforcement based solely on statistical imbalances, and, as a result, take discriminatory actions—including to “correct” those imbalances. It also references Executive Order 14281, which directed federal agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.”

“Potential Equal Protection Violation”

The core constitutional argument is that, because the reports compel government-mandated racial classifications, they are subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment. The EEOC has concluded that the mass collection of demographic data—unconnected to any specific charge of discrimination—is not “narrowly tailored” to a compelling governmental interest. The Commission distinguishes this bulk data collection from its investigative authority to request specific records from a particular employer during an active charge investigation, which it views as a more narrowly tailored alternative.

The Dissent

During the public meeting, Commissioner Kotagal opposed the proposal, arguing that rescinding the reporting obligations would increase costs because the agency would have to use legal processes to require employers to produce the data, which could increase the length of investigations. She further emphasized that employers would need to continue collecting data under certain state laws. She also unsuccessfully sought to extend the comment period to the standard sixty days to provide additional time for stakeholders to review and comment on the proposal.

“It’s a ‘See no evil, hear no evil’ approach,” Commissioner Kotagal stated. “But discrimination does not go away just because you erase the data. It just becomes harder to prove.”

What Employers Need to Know

The proposal to rescind EEO reporting represents a significant potential shift in federal employment reporting requirements. However, the proposal is not yet final, and current reporting obligations remain in effect. The EEOC will also continue to maintain the authority to seek workforce and personnel records during investigations. Employers may wish to distinguish between the proposed elimination of routine EEO reporting and continuing personnel record preservation obligations.

Even if the proposal advances, it may face legal challenges. The constitutional justification relies on recent Supreme Court precedent that could draw legal scrutiny. Specifically, the NPRM treats mandatory demographic data collection as a racial classification subject to strict scrutiny that may be tested in court.

Further, even if EEO-1 reporting is rescinded, separate state and local data collection and reporting requirements would remain in effect, and states may seek to fill the gap by imposing additional workforce demographic data collection requirements.

Next Steps

The NPRM provides for a thirty-day public comment period following its formal publication in the Federal Register. A public hearing is scheduled for August 11, 2026, at the EEOC’s headquarters. Requests to testify must be submitted by August 7, 2026.

Employers and other stakeholders may want to consider submitting comments on the proposal and should stay tuned to forthcoming developments and further details.

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

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

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