Quick Hits

• Beginning January 1, 2028, employers already subject to California’s mandatory harassment prevention training requirements must incorporate an anti-hate speech component into that training.
• AB 1803 does not create a separate training obligation and does not increase the existing one-hour and two-hour training minimums. Employers may fold the new content into their current programs.
• The bill does not define “hate speech,” a gap the Assembly Committee on Labor and Employment flagged during the legislative process, and one that employers should watch as agency guidance develops.

Background on California’s Harassment Prevention Training Mandate

California employers with five or more employees are already required to provide at least two hours of harassment prevention training to supervisory employees and at least one hour to nonsupervisory employees every two years. New nonsupervisory employees generally must be trained within six months of hire, and new supervisory employees within six months of assuming a supervisory role. The required training currently must address sexual harassment, prevention of abusive conduct, and harassment based on gender identity, gender expression, and sexual orientation. AB 1803 amends this existing framework rather than replacing it.

What AB 1803 Adds

Beginning January 1, 2028, covered employers must include anti-hate speech training as a component of their existing harassment prevention training. That component is expected to give supervisors and employees practical guidance on recognizing, reporting, and confronting workplace speech that vilifies, humiliates, or incites hatred against people based on the Fair Employment and Housing Act’s (FEHA) protected characteristics, including race, religious creed, color, national origin, ancestry, physical or mental disability, reproductive health decision making, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and veteran or military status.

Notably, the bill does not increase the existing training time requirements or require a standalone course. Employers may incorporate the new content into their existing harassment prevention programs, and training will satisfy the new requirement if it already includes information about both the prohibition against unlawful harassment and the prevention of abusive conduct based on protected characteristics. As a result, some employers’ current training may already cover part or all of the new requirement.

The Undefined ‘Hate Speech’ Problem

AB 1803 does not define “hate speech.” The law does not distinguish between harassment based on a protected characteristic, which is unlawful under FEHA, and “hate speech,” which is not otherwise addressed in FEHA, and which may or may not be different behavior.

The Assembly Committee on Labor and Employment’s analysis of the bill noted that committee staff was unaware of any existing definition of hate speech under California law and observed that hate speech itself is not illegal but can violate employment law when it rises to an actionable level of workplace harassment or discrimination. Lawmakers flagged this gap as the bill moved through committee, but it was not resolved before the bill reached the governor’s desk.

For employers, this creates some ambiguity heading into 2028. The lack of a fixed statutory definition allows flexibility in how training content is framed, but it also leaves open questions about how “recognizing and confronting” hate speech will be interpreted in practice, both by trainers and, eventually, by courts and the Civil Rights Department.

Key Takeaways

AB 1803 does not overhaul California’s harassment prevention training scheme, but it does add a substantive new component that covered employers will need to build into their existing programs beginning January 1, 2028. Employers should begin reviewing current training content, coordinating with training vendors, and confirming that reporting and investigation practices can handle complaints involving hate speech, ahead of the effective date.

Ogletree Deakins’ California offices will continue to monitor developments with respect to AB 1803 and related legislation affecting California’s workplaces and will provide updates on the firm’s California and Workplace Violence Prevention blogs as additional information becomes available.

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Quick Hits

• Beginning in January 2027, the IDOL will no longer allow employers to use “prefers not to identify” for reported employees’ race/ethnicity.
• The IDOL notes an academic study that suggests ways to examine EPRC filings and possibly take stronger action based on statistical differences.
• The IDOL has updated its process for handling overdue/unmade EPRC filings from three (3) steps to two (2) steps, meaning filers have less time to remedy filing issues and avoid penalties.
• The IDOL’s July 2026 notice makes it clear to filers that EPRC filing requirements are not tied to EEO-1 filing requirements, meaning that EPRC requirements will continue even if EEO-1 filings end.

The July email notes that, while there have been over 9,000 EPRC submissions to the IDOL since 2022, most employers interact with the EPRC process only every two years, and this notice helps ensure employers stay informed.

Significant Demographic Reporting Changes

The July email includes a discussion of the IDOL’s October 2025 addition of “Middle Eastern or North African” as a race/ethnicity reporting option for EPRC filers, implemented by modifying the CSV upload file used to provide EPRC data. While this race/ethnicity category has been added to both Illinois and California pay reporting, it has not been adopted by the U.S. Equal Employment Opportunity Commission (EEOC) for EEO-1 reporting.

In July 2026, the IDOL again updated the upload CSV file to remove the previously available race/ethnicity and sex option of “prefers not to identify.” Illinois employers could previously use this option to report employees who declined to provide their race/ethnicity and/or gender. Despite this mid-2026 change, the IDOL will still allow EPRC filers to continue to use the prior version of the CSV upload file containing the “prefers not to identify” field until January 2027, provided that they have previously downloaded the old version of the CSV upload file. Beginning in January 2027, the EPRC filing system will no longer accept any submissions containing “prefers not to identify.” The IDOL advises employers, through answers to frequently asked questions (FAQs), that they may upload an explanatory document providing additional information about employees that they wish to share.

For employees who decline to provide their race/ethnicity and/or gender, the IDOL advises that the employer may use employment records or observer identification to determine the missing self-identification (self-ID) information. The IDOL advises that records should be kept separately from an employee’s “basic personnel file or other records available to those responsible for personnel decisions.” In describing the self-ID process for EPRC reporting, the IDOL states that it follows the essence of federal guidance for self-ID, noting that employers should offer employees the opportunity to self-ID and provide a statement concerning the voluntary nature of this opportunity. The EPRC FAQs include a sample communication that can be shared with employees.

While still pending, the EEOC’s effort to end EEO-1 reporting could impact employers’ collections of race/ethnicity and gender data from all employees. If this happens, employers may need to consider a more narrowly focused collection of self-ID information for employees who will be reported in their EPRC filings.

Illinois Is Reviewing EPRC Data and Considering Next Steps, Including Self-Audit Tools

The IDOL partnered with the University of Illinois Urbana-Champaign Project for Middle Class Renewal to analyze the filed 2021–2023 EPRC data. This partnership included the production of a report (“UIUC Project Report”), which presented findings on pay disparities and recommended best practices for the IDOL and employers.

EPRC FAQ 30 provides more information on the UIUC Project, including access to the full report, which contains best-practice recommendations and voluntary HR-oriented practices published on pages 12–14. This report’s key findings include discussions of gender, racial, and ethnic pay gaps. In discussing the identified gender pay gaps, the report states that the analyzed EPRC pay data “reveals a consistent and measurable wage gap” between men and women working at “large private-sector firms” in Illinois. While the size of the pay gap varies with several factors, the report states that women in Illinois earn less on average than men “even when working in the same job categories for the same employers.” The analyses also revealed “larger and consistent wage gaps” between White workers and workers of color across large Illinois private-sector employers. More specifically, the report notes that “clear pay inequities remain” for Black and Hispanic workers in “lower-paid roles.”

The report recommends using a threshold-based flagging system to identify employers with unusually large wage gaps by comparing percentage differences relative to the dominant group, which is typically composed of whites and males.

The flagging system includes three (3) tiers: (1) informational for employers with average pay gaps of 5 percent to 15 percent; (2) moderate risk for employers with gaps exceeding 15 percent but below 25 percent, which would be recommended for further review; and (3) high risk for employers with wage gaps exceeding 25 percent, which would warrant immediate attention. As EPRC data collection improves, the report suggests that the system can be updated to include additional thresholds, such as the top 5 percent of employers with the widest gap within certain job classifications or geographic regions.

EPRC FAQ 30 advises employers on the report’s recommendations, which they can use to evaluate their company’s pay equity compliance. This FAQ states that the IDOL is considering different options for employer self-audit tools, which the IDOL hopes to make “available soon.”

Additional Administrative Updates

In addition to these major developments, the IDOL notified July email recipients of minor updates, including changes to the process for dealing with overdue or unmade EPRC filings. These changes reduce the process from three steps to two, giving filers less time to remedy filing issues and avoid penalties. The new process discusses penalties beginning with the first step, unlike the prior process.

The IDOL also made it clear that the EPRC requirement has been completely decoupled from the EEO-1 filing requirement, meaning that the EPRC requirement will continue if EEO-1 reporting ends.

The July email also notes improvements within the EPRC portal. This includes allowing users to obtain copies of certificates and providing an improved notice of the thirty-day deadline to make revisions to a rejected submission before the filing must be refiled, including a new filing fee. There was also a notice that a new EPRC reporting tool will be rolled out to users on January 1, 2027.

Key Takeaways

• Beginning no later than January 1, 2027, all employees, including those in EPRC reports, must have their gender and race/ethnicity established, even if they declined to provide self-ID information. For such employees, the IDOL directs employers to use employment records or observer identification to populate the missing self-ID information.
• The IDOL has reviewed the first three years of filed EPRC reports as part of the UIUC Project Report and is considering next steps. This report found specific evidence of pay gaps on the basis of both gender and race/ethnicity. The IDOL indicates that it is considering self-audit tools based on these findings and “hopes” to make them available soon. While the report’s threshold-based flagging system is not directly addressed by the IDOL in the July email or the EPRC FAQs, it provides a framework for the IDOL to easily evaluate employer submissions and consider them for additional follow-up.
• While it will be important to see if the IDOL takes concrete steps with respect to this threshold flagging system, employers who file EPRC reports may want to consider analyzing their data using the proposed system to see how their data performs as well as to determine explanations for identified differences.
  • Employers may also want to consider more in-depth analyses, including a privileged pay audit in cases of large pay gaps shown by this process.

The July email shows that the IDOL continues to focus on changes to increase the validity of the filed EPRC data. It also suggests a shift from ensuring employers report as required to a deeper review of the filed data with an eye toward possible enforcement action. Employers may want to keep a careful eye on their EPRC reporting obligations moving forward.

Ogletree Deakins’ Chicago office, Government Contracting and Compliance Practice Group, Pay Equity Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments with respect to the Illinois EPRC application and review process and will provide updates on the firm’s Government Contracting and Compliance, Illinois, Pay Equity, and Workforce Analytics and Compliance blogs as additional information becomes available.

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Quick Hits

• The October 2026 Visa Bulletin reflects the start of FY 2027 immigrant visa number availability, with the State Department noting advancement across various immigrant visa categories.
• USCIS has confirmed that employment-based adjustment-of-status (“green card”) applicants may use the Dates for Filing chart in October 2026, opening filing eligibility to a substantially larger pool of applicants than the Final Action Dates chart alone would allow.
• EB-2 India and EB-5 India Unreserved, which were unavailable in September 2026, again have October 2026 final action dates.
• Some employment-based “Rest of World” categories retrogressed in October 2026, and the State Department stated that the retrogressions are intended to keep visa issuances within FY 2027 quarterly and annual limits.

U.S. Citizenship and Immigration Services (USCIS) has separately confirmed that employment-based adjustment-of-status applicants may file in October using the Dates for Filing chart in the October 2026 Visa Bulletin rather than the more restrictive Final Action Dates chart, meaning the wider dates for filing windows described below determine October filing eligibility.

Dates for Filing Control for October 2026 filing eligibility

USCIS has confirmed applicants may use this chart for October employment-based adjustment filings. That makes filing eligibility and final-approval timing two separate tracks this month: dates for filing controls whether Form I-485 can be filed now (plus related Employment Authorization Document (EAD)/advance parole eligibility); final action dates still controls final approval.

• EB-1: China and India both July 1, 2024 (up seven months from December 1, 2023).
• EB-2: Rest of World (ROW)/Mexico/Philippines March 15, 2026; China January 1, 2023 (~one year advance); India January 15, 2015 (unchanged).
• EB-3: ROW/Mexico August 1, 2024; China April 1, 2024; India January 15, 2015; Philippines January 1, 2024.
• EB-5 Unreserved: ROW/Mexico/Philippines current; China March 1, 2021; India May 1, 2024.

Employment-based Category	All Chargeability Areas Except Those Listed	China-mainland born	India	Mexico	Philippines
EB-1	Current	July 1, 2024	July 1, 2024	Current	Current
EB-2	March 15, 2026	January 1, 2023	January 15, 2015	March 15, 2026	March 15, 2026
EB-3	August 1, 2024	April 1, 2024	January 15, 2015	August 1, 2024	January 1, 2024
Other Workers	June 1, 2022	October 1, 2020	January 15, 2015	June 1, 2022	June 1, 2022
EB-5 Unreserved	Current	March 1, 2021	May 1, 2024	Current	Current
EB-5 Set Aside Categories: Rural, High Unemployment, Infrastructure	Current	Current	Current	Current	Current

Source: U.S. Department of State, October 2026 Visa Bulletin

Notably, EB-2 and EB-3 ROW/Mexico filing dates (March 15, 2026, and August 1, 2024) sit well ahead of their retrogressed final action dates, so most affected applicants can still file in October even though final approval will wait. Employees whose priority dates clear the dates for filing cutoff but not the final action date may now file and may be eligible for interim benefits (EAD, advance parole) while final action is tracked separately.

Final Action Dates (Approval/Visa Issuance)

• EB-1: Current for ROW, Mexico, Philippines. China unchanged at July 1, 2023. India advances to February 1, 2023 (from October 15, 2022).
• EB-2: India returns at November 1, 2013 (from unavailable). China advances to October 1, 2021. ROW/Mexico/Philippines retrogress to January 1, 2025.
• EB-3: ROW/Mexico retrogress to May 15, 2024. China advances one week to January 8, 2022. India unchanged at January 1, 2014. Philippines advances to August 15, 2023.
• EB-3 Other Workers: ROW/Mexico retrogress to January 1, 2022. China advances to October 1, 2019. India unchanged. Philippines advances to January 1, 2022.
• EB-4/Religious Workers: December 15, 2022, across all countries. H.R. 6500 (signed September 2, 2026) extends the Religious Workers category through December 11, 2026.
• EB-5 Unreserved: China unchanged at December 1, 2016. India returns at December 1, 2023 (from unavailable).
• EB-5 Set Aside Categories: Remain current.

Employment-based Category	All Chargeability Areas Except Those Listed	China-mainland born	India	Mexico	Philippines
1st	Current	July 1, 2023	February 1, 2023	Current	Current
2nd	January 1, 2025	October 1, 2021	November 1, 2013	January 1, 2025	January 1, 2025
3rd	May 15, 2024	January 8, 2022	January 1, 2014	May 15, 2024	August 15, 2023
Other Workers	January 1, 2022	October 1, 2019	January 1, 2014	January 1, 2022	January 1, 2022
EB-5 Unreserved	Current	December 1, 2016	December 1, 2023	Current	Current
EB-5 Set Aside Categories: Rural, High Unemployment, Infrastructure	Current	Current	Current	Current	Current

Source: U.S. Department of State, October 2026 Visa Bulletin

Because USCIS has authorized dates for filing, the retrogressions above mainly affect when a case can be finally approved, not whether it can be filed in October. Since chart selection is reassessed monthly, this authorization is not guaranteed to carry into November.

Next Steps

With USCIS’s confirmation that the Dates for Filing chart governs October 2026 employment-based adjustment filings, the gap between the two charts may be relevant to employers and foreign national employees whose priority dates fall between the dates for filing cutoff and the final action date. The return of final action dates for EB-2 India and EB-5 India Unreserved may also affect applicants who were unable to move forward during September’s unavailability. Because USCIS reassesses chart selection each month, it is not yet known whether the October authorization will carry into November 2026. Despite this month’s movement, significant backlogs remain in the EB-1, EB-2, EB-3, and EB-5 categories for applicants chargeable to China and India, and those backlogs may continue to affect long-term retention and work-authorization considerations.

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

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• Twenty-eight states require employers to provide either paid or unpaid leave for voting.
• Some states have notice requirements related to employees’ right to take time off to vote.
• Election Day is November 3, 2026, but many states have in-person early voting that starts mid-October.

Quick Hits

Twenty-eight states and Washington, D.C., require employers to provide time off for employees to vote. Many states also require time off for employees who serve as election officials or voting machine technicians. Some states also require employees to request time off in advance.

For example, Colorado’s law, which took effect on June 1, 2026, mandates up to two hours of paid leave to vote on any day the voter service and polling centers are open, not just on Election Day. In Maryland, employers must provide employees who claim to be registered voters up to two hours of paid leave to vote on Election Day, but only if the employee does not have two consecutive nonworking hours to vote while the polls are open. California’s law prohibits employers from requesting that an employee bring a mail ballot to work or vote with a mail ballot at work. 

Employer obligations related to voting do not stop at providing time off. Some states have notice provisions that require employers to display a poster or online information describing employees’ right to take time off to vote.

Like other leave laws, the wide variation in state voting leave laws may make compliance complicated for multistate employers. Using state-specific supplements or addenda to employee handbooks may be helpful for multistate employers to address unique state and local laws. While having state-specific voting leave policies is not generally required, this approach may be the most efficient way to help employees and managers navigate these situations. Additionally, employers may want to consider training managers on how to respond to employee requests for time off in these scenarios, regardless of whether jurisdiction-specific policies are used.

From a practical perspective, maintaining adequate staffing can obviously be a concern for certain industries or corporate units that operate 24/7, including many healthcare facilities, hospitality businesses, manufacturing facilities, convenience stores, and gas stations. To permit time off to vote while the polls are open, employers may consider options like shift adjustments, shift swapping, or extra staffing on Election Day.

Next Steps

Employers may want to review their employee handbooks and written policies to ensure they comply with applicable state and local laws on voting leave. They may also wish to train managers to properly handle requests for time off to vote.

Ogletree Deakins’ Leaves of Absence and Multistate Advice and Counseling Practice Groups will continue to monitor developments and will post updates on the Leaves of Absence, Multistate Compliance, and State Developments blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal covers legal developments in state and major locality voting and election leave laws. Premium-level subscribers have access to comprehensive 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.

Lucas J. Asper is a shareholder in Ogletree Deakins’ Greenville office.

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

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Quick Hits

• A five-judge panel of the Ontario Court of Appeal has replaced the 1973 Sault Dock framework with an updated two-part test for leave to appeal from the Divisional Court: arguability and public importance.
• The same test now applies regardless of whether the Divisional Court was exercising original jurisdiction (e.g., judicial review) or appellate jurisdiction (e.g., tribunal appeals); the old distinction is gone.
• Arguability asks whether there is a real, debatable question of law or mixed law and fact between the parties. It does not require a prediction that the appeal will succeed, but it does require more than a bare assertion of error.
• Public importance looks at two things: (1) the breadth of who is affected and how fundamental the interest at stake is, and (2) the significance of the question for the development of Ontario law.
• The old residual “special circumstances” and “clear error” categories from Sault Dock are folded into the public importance analysis rather than standing as separate grounds.
• Despite updating the framework, the court dismissed the applicant’s leave application, finding that his challenge to a discretionary mootness decision did not raise an arguable question of public importance.

The decision does not throw open the doors to the Court of Appeal. But it does modernize a test that many felt had become rigid, outdated, and disconnected from the realities of Ontario’s evolving legal landscape particularly in human rights and administrative law, where employers, school boards, and regulated bodies operate every day.

The Background

The story behind this decision starts with a disagreement between two panels of the Court of Appeal in late 2024.

In West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910, a three-judge panel raised concerns that the Sault Dock framework was being misapplied. Parties were treating its nonexhaustive list of examples as a rigid checklist, and the test had not kept pace with major legal developments, the Canadian Charter of Rights and Freedoms, the growth of administrative law, and changes to the Divisional Court’s docket. The panel proposed a reformulated “lens” modelled on the Supreme Court of Canada’s approach.

Two weeks later, in Davis v. Aviva General Insurance Company, 2024 ONCA 944, a different three-judge panel pushed back. Sault Dock still governed, it said, and only a five-judge panel could change that. West Whitby was helpful commentary, not a new test.

The result was uncertainty. Commentators and litigants were left asking: which test applies? Enter Adam Knauff, who asked the court to reconsider Sault Dock altogether. The Court of Appeal convened a five-judge panel to do exactly that.

What Changed

Justice Benjamin Zarnett, writing for the court, kept the essential message of Sault Dock intact: leave to appeal turns on whether the issue is an arguable question of public importance. But the framework around that message has been significantly clarified and updated.

One test for everything. The court eliminated the old distinction between appeals from the Divisional Court’s original jurisdiction (judicial reviews) and its appellate jurisdiction (tribunal and other appeals). The reasoning is straightforward: a party seeking judicial review of a tribunal decision is also seeking a second look, just like a party appealing from the Divisional Court’s appellate docket. The type of jurisdiction exercised does not reliably predict when further appeal is justified. The same test now applies across the board.

Arguability is the gateway. Before the court even considers public importance, there must be a real, debatable question of law or mixed law and fact arising in the specific circumstances of the case. A question that would be important in different circumstances or on a different record is not enough. If the question is really about the facts, or was never argued below, or challenges a highly deferential decision without apparent grounds to overturn it, arguability may be lacking.

Public importance has two dimensions. First, the court asks who is affected and how; the broader the category of persons and the more fundamental the interest, the stronger the case for public importance. Second, it asks what the question means for the development of Ontario law: does it go to the coherence, stability, and progress of the province’s jurisprudence? These two dimensions often overlap with each other and with arguability.

No more separate residual categories. Sault Dock had created separate buckets for “special circumstances,” “interest of justice” errors, and “clear errors.” These are now absorbed into the public importance analysis. An argument that an error caused a miscarriage of justice, or that a clear error has precedential implications, is assessed through the same framework as any other claim of public importance.

Interlocutory orders lose their extra hurdle. The old additional test for interlocutory decisions requiring a showing that the decision could bear on a critical issue in the litigation before even getting to the Sault Dock analysis is gone. Whether an order had a decisive or transitory effect is simply one factor in the overall assessment.

What This Means for Defendants

This decision changes the calculus in several important ways for anyone who has ever considered appealing a Divisional Court decision or worried about an opposing party doing so.

Tribunal decisions are now on equal footing. Many disputes begin at administrative tribunals—the Human Rights Tribunal of Ontario, the Ontario Special Education Tribunal, and labour arbitrations that reach the Divisional Court. Under the old framework, appeals from these decisions (heard by the Divisional Court in its appellate capacity) were treated as “exceptional” and subject to a “stringent” standard. That heightened threshold is gone. The same test now applies whether the Divisional Court was reviewing a tribunal decision on judicial review or on statutory appeal.

The bar is clearer, not necessarily lower. The updated framework is more structured, but it still requires both arguability and public importance. A party cannot get leave simply by asserting that the Divisional Court got it wrong. They need to show a genuine legal question that matters beyond their own case. For defendants, this means that routine adjudicative losses are unlikely to become springboards for Court of Appeal litigation but decisions involving novel legal issues. Developing areas of human rights, labour, or education law, or questions lacking authoritative guidance may now have a clearer path.

Watch for the arguability filter. The court’s emphasis on arguability as a genuine threshold, and not a rubber stamp, is significant. Challenges to discretionary decisions, fact-specific applications of settled law, and issues raised for the first time on appeal will face real scrutiny at the leave stage. This should provide some comfort that the updated framework is not an invitation for routine or frivolous leave applications.

The Bottom Line

Knauff v. Ontario (Human Rights Tribunal) will quietly reshape the litigation landscape for years to come. For anyone involved in tribunal proceedings in Ontario, whether at the Human Rights Tribunal, the Ontario Special Education Tribunal, or before labour arbitrators, the rules for what happens after the Divisional Court have just been revised. The framework is clearer, more flexible, and applies uniformly regardless of how the case reached the Divisional Court.

Ogletree Deakins’ Toronto office will continue to monitor developments and will post updates on the Canada and Cross-Border blogs as additional information becomes available.

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Quick Hits

• The IRS and Treasury Department confirmed that most employer-sponsored retirement plans generally have until December 31, 2026, to adopt discretionary amendments implementing SECURE and SECURE 2.0 provisions, with later deadlines for collectively bargained, governmental, and public school 403(b) plans.
• Required amendments, and future guidance relating to discretionary amendments that have already been adopted, may have later deadlines tied to future IRS Required Amendments (RA) lists.
• The IRS and Treasury indicated final regulations are forthcoming with respect to automatic enrollment, long-term part-time workers, and required minimum distributions.

Background

Generally, the timing for adopting retirement plan amendments depends on whether the amendment is discretionary or required. For optional plan design changes, the amendment is generally due by the last day of the plan year in which the change is implemented. In contrast, amendments required to maintain a plan’s tax-qualified status are subject to a remedial amendment period and generally must be adopted by the last day of the second calendar year following the issuance of the RA list featuring the required change.

The IRS typically adds items to an RA list after regulations are issued relating to that amendment. However, the IRS has the authority to add an item in other circumstances, such as when a statutory change is enacted but no implementation guidance is expected.

Looming SECURE Act and SECURE 2.0 Deadlines

The SECURE Act and SECURE 2.0 included required plan changes and optional plan design provisions.

Examples of discretionary SECURE and SECURE 2.0 amendments include those implementing student-loan-payment matching contributions, emergency savings accounts, Roth employer matching and nonelective contributions, domestic abuse victim distributions, terminally ill participant distributions, qualified long-term-care distributions, and the saver’s match. Guidance issued in 2024 indicated that, for most plans, the current SECURE and SECURE 2.0 discretionary amendment deadline is December 31, 2026. Collectively bargained plans generally have until December 31, 2028, and governmental plans and public school 403(b) plans generally have until December 31, 2029.

Examples of required SECURE and SECURE 2.0 amendments include changes to required minimum distributions, the Roth catch-up contribution mandate, long-term-part-time employee eligibility requirements, and mandatory automatic enrollment. Guidance has been issued on many of those requirements, but questions remain. Most plans have been working to adopt amendments for the required provisions at the same time as discretionary changes (that is, by December 31, 2026, for most plans).

Later Amendment Deadlines

The September 2026 edition of the IRS’s Employee Plans clarified that the applicable amendment deadlines are the later RA list deadlines. It notes that changes that cannot reasonably be reflected in plan language without guidance, or for which the Treasury Department and IRS expect to issue guidance, will not appear on an RA list until the guidance is issued and applicable. This gives plan sponsors awaiting guidance additional time to amend their plans.

More interestingly, perhaps, the guidance also extends the discretionary plan amendment deadline if future guidance is issued regarding the discretionary provision that makes its way on the RA list. Specifically, if additional guidance concerning the provision or its implementation is issued after the discretionary amendment is adopted, the plan has the longer remedial amendment period to adopt that change, rather than the much earlier deadline that would ordinarily apply. Thus, an amendment addressing the discretionary provisions implementing the guidance must be adopted by the end of the second plan year after the guidance is listed on the RA list.

Promise of Future Guidance

The Treasury Department and the IRS expect to issue final regulations with respect to the following provisions: (1) automatic enrollment requirements imposed by section 101 of SECURE 2.0, (2) long-term part-time requirements imposed by section 125 of SECURE and section 112 of SECURE 2.0, and (3) required minimum distribution requirements imposed by SECURE and SECURE 2.0 provisions that have not already appeared on an RA list. These provisions will be included on a future RA list after a final regulation becomes applicable.

Final regulations are generally not expected to be applicable any earlier than the plan year commencing six months following the issuance of such final regulations. For example, if final regulations are issued for a SECURE 2.0 provision on June 30, 2027, then such final regulations would not become applicable until the 2028 plan year.

Likewise, the Roth catch-up requirements under section 603 of the SECURE 2.0 Act are expected to appear on the 2027 RA list (when the final Roth catch-up regulations become applicable), so the deadline for adopting those requirements will be December 31, 2029.

Next Steps

Employers may wish to use the additional time to:

• inventory SECURE Act and SECURE 2.0 changes already implemented in operation, distinguishing discretionary design changes from required compliance updates;
• identify amendments that may depend on future IRS guidance or future RA lists;
• coordinate with a legal team, recordkeepers, third-party administrators, and document providers on amendment responsibility and timing;
• consider whether interim participant communications may help reduce confusion before formal summary plan description or summary of material modification updates are required; and
• evaluate whether amending the plan before the IRS deadline may help simplify plan documents, communications, and administration.

Ogletree Deakins’ Employee Benefits and Executive Compensation group will continue to monitor developments and will post updates on the Employee Benefits and Executive Compensation blog as additional information becomes available.

Katrina M. Clingerman is a shareholder in Ogletree Deakins’ Indianapolis office.

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

David S. Rosner is a shareholder in Ogletree Deakins’ Washington, D.C., 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

• Volunteering may trigger certain duties of consideration (Rücksichtnahmepflichten) for employers.
• The specific activity is decisive, however, so each case must be assessed individually.
• As a general rule, volunteering remains a private matter.

What Is Volunteering?

Volunteering (Ehrenamt) generally means a voluntary activity that is not aimed at generating profit and benefits the public good. An expense allowance may be paid in the form of money, provided there is no genuine profit-making intent and no employment relationship exists.

The General Rule: Volunteering Is a Private Matter

Employees are generally free to organize their leisure time as they wish. For employers, this means that volunteering cannot be prohibited across the board. It becomes relevant under employment law only if the activity interferes with the employee’s work obligations, creates conflicts of interest, or affects legitimate business interests. Notification or approval requirements for secondary activities, which are regularly included in employment contracts, do not initially change this principle. They do, however, primarily give the employer an opportunity to assess whether the volunteering has a relevant connection to the employment relationship. If there is no such connection, the volunteering remains exclusively a private matter.

What Obligations May Employers Face?

As a general rule, there is no additional “right” to engage in volunteering that would give rise to claims against the employer. However, provisions are found in various special statutes, collective bargaining agreements, works agreements, or employment contracts. Accordingly, any potential claims must be assessed on a case-by-case basis.

Leaves of Absence

An entitlement to leave does not exist for every form of volunteering. For certain volunteer activities, however, the law provides entitlements to leave, often with continued payment of compensation or reimbursement claims against the responsible organization. For example, for the Federal Technical Relief Agency (THW) and the volunteer fire service, if employees are called to THW duty or, in the case of the volunteer fire service, to deployments, exercises, or training during their working hours, they must be released from work for the duration of those activities while continuing to receive their wages. Private employers can generally seek reimbursement from the municipality or the responsible authority.

Honorary judges must be released from work for the duration of their service under Section 45 (1a) sentence 2 of the German Judiciary Act (Deutsches Richtergesetz (DRiG)). Financial compensation is instead provided through claims under the German Judicial Compensation and Reimbursement of Expenses Act (Justizvergütungs- und -entschädigungsgesetz (JVEG)), including for lost time and loss of earnings. By contrast, during reservist service (although this is generally not a classic form of volunteering), the employment relationship is suspended. Private employers therefore generally do not owe regular continued wage payments.

Financial protection instead comes through special statutory benefits, particularly under the German Maintenance Security Act (Unterhaltssicherungsgesetz (USG)). Finally, candidacies for political office may also give rise to entitlements to leave. For candidates for the German Bundestag, unpaid election-preparation leave may be available under Article 48 of the German Basic Law (Grundgesetz (GG)) and Section 3 of the German Members of Parliament Act (Abgeordnetengesetz (AbgG)). For state-parliamentary and local-government mandates, the applicable state-law provisions control and may provide for leave or educational leave, depending on the state.

Special Dismissal Protection and Protection Against Discrimination

Volunteering alone does not trigger general special protection against dismissal. Many special statutes, however, contain prohibitions on adverse treatment or their own protective provisions. Honorary judges may not be dismissed because they have accepted or are performing their office; the Constitution of the State of Brandenburg (Brandenburgische Landesverfassung) goes further in Article 110 (1) sentence 2 by entirely excluding ordinary dismissal during the term of office. The THW and, generally, state-law provisions concerning the volunteer fire service and disaster relief also provide special protections against disadvantage. Political mandates and candidacies may likewise be protected.

Applications for a mandate, as well as the acquisition, acceptance, and exercise of a mandate may not result in adverse treatment at work. For Bundestag mandates, Section 2 (3) AbgG provides that termination or dismissal because of the acquisition, acceptance, or exercise of the mandate is impermissible and, otherwise, is permissible only for good cause. Protection against dismissal begins when the candidate is nominated by the party body responsible for doing so or when the election proposal is submitted. It continues for one year after the mandate ends. For state-parliamentary and local-government mandates, the applicable state law controls (see, e.g., Section 2 (3) of the Berlin State Parliament Act (Landesabgeordnetengesetz Berlin (LAbgG)).

Takeaways

Volunteering is an important part of participation in society. Under employment law, it nevertheless generally remains a private matter unless it affects the employment relationship. In that event, the legislature seeks to balance the interests of both sides: entitlements to leave, continued wage payments, and special protection against dismissal support volunteering without losing sight of employers’ legitimate interests. Individuals who volunteer deserve not only social recognition but also legal protection.

Tatjana Serbina, LL.M. is of counsel in Ogletree Deakins’ Berlin office.

Nele Büttner contributed to this article as an intern in Ogletree Deakins’ Berlin office.

Ogletree Deakins’ Berlin office will continue to monitor developments and will post updates on the Cross-Border, Employee Engagement, Germany, and Leaves of Absence blogs as additional information becomes available.

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Quick Hits

• On September 24, 2026, OSHA issued a fact sheet that includes tips for being prepared for drug overdoses, including stocking opioid overdose reversal medications and training employees to administer them.
• Sometimes opioids are implicated in suicide attempts. The OSHA guidance came during National Suicide Prevention Month, which falls in September each year.
• There were 44,564 opioid-related overdose deaths in the United States in 2025, according to the Centers for Disease Control and Prevention (CDC).

OSHA suggests these strategies for employers to be prepared in case an overdose emergency happens to an employee, customer, or visitor at the workplace:

• Keep U.S. Food and Drug Administration (FDA)-approved opioid overdose reversal medications readily available and visible at the workplace.
• Train workers on how to recognize common signs of an overdose, such as slow or stopped breathing, blue lips or skin, pinpoint pupils, and unresponsiveness.
• Train workers to administer an opioid overdose reversal medication, safely position the person, and provide support while waiting for first responders to arrive.
• Call 911 immediately when an overdose emergency occurs because the medication’s effects are temporary, and professional medical care is still needed.

Some local governments, nonprofits, hospitals, and religious congregations offer training in administering nalmefene or naloxone, which attaches to opioid receptors in the brain and blocks the effects of opioids like heroin, fentanyl, oxycodone, and morphine. The medications, in the form of a nasal spray or injection, can restore normal breathing after an overdose and generally have no effect if opioids are not present, according to OSHA.

Some states have Good Samaritan laws that protect anyone who calls 911 after observing a suspected drug overdose. In some cases, the state laws also protect anyone who administers an overdose reversal drug after a suspected drug overdose.

Next Steps

The number of opioid-related deaths has decreased in the last two years, but a drug overdose potentially could impact any workplace, regardless of location or industry. Employers may wish to consider asking employees to volunteer to be trained in administering opioid overdose reversal drugs. It may be helpful to assign an individual to keep track of the supply and replace any expired medications.

Employers can store opioid overdose reversal drugs next to first aid kits and automated external defibrillators (AEDs), as long as they are stored away from direct light and excessive heat or cold, according to OSHA. Clear signs can help people quickly find the medicine in an emergency. Alongside the overdose reversal medications, employers can store personal protective equipment, such as nitrile gloves and face masks, to protect those who administer the medication from infectious diseases in body fluids.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will post updates on the Drug Testing, Healthcare, and Workplace Safety and Health blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on federal and state laws that cover Health and Safety. Premium-level subscribers have access to comprehensive law summaries, policies, and templates. 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.

Michael Clarkson is a shareholder in Ogletree Deakins’ Boston 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

• Private employers with one hundred or more employees in the United States with at least one employee working in California are required to file relevant payroll employee and labor contractor employee reports each reporting year.
• Employers are currently subject to a penalty of up to $100 per employee for a first violation and $200 per employee for a subsequent violation for failing to file.
• Recent amendments under SB 464 require courts to impose civil penalties on noncompliant employers and, beginning January 1, 2027, will increase the number of reportable job categories from ten to twenty-three.
• SB 1237, which would raise the penalty for second and later violations up to $1,000, is currently pending Governor Newsom’s signature.

The New Enforcement Actions

On September 14, 2026, CRD filed separate petitions to compel compliance against two employers for failing to submit required pay data reports under California Government Code Section 12999. Both employers had previously filed pay reports but failed to continue to file reports for multiple years even after being reminded of their reporting obligations.

California Food Management LLC (d/b/a Burger King). CRD filed a petition in Los Angeles County Superior Court against California Food Management LLC, which operates Burger King fast-food restaurant franchises in California and employs hundreds of individuals throughout the state. CRD alleges that the company failed to submit pay data reports for reporting years 2023, 2024, and 2025. Notably, California Food Management had previously submitted a certified pay data report for reporting year 2022, demonstrating its awareness of the reporting obligation. Despite receiving a notice of potential noncompliance in September 2025, a notice of noncompliance in January 2026, and a notice of impending court action in April 2026, CRD alleges that the company failed to respond to any of the CRD’s notices or submit the outstanding reports. CRD is seeking penalties of $100 per employee for the 2023 reporting year and $200 per employee for each of the 2024 and 2025 reporting years, along with costs and attorneys’ fees.

Coast 2 Coast Coaching, Inc. (d/b/a Elevo and Sports for Learning). CRD filed a separate petition in San Diego County Superior Court against Coast 2 Coast Coaching, Inc., an after-school sports program operator employing more than 2,100 coaches and other employees across more than forty cities in California. CRD alleges that Coast 2 Coast failed to submit pay data reports for reporting years 2024 and 2025. Like California Food Management, Coast 2 Coast had previously filed pay data reports for reporting years 2021, 2022, and 2023, confirming its awareness of the obligation. CRD sent Coast 2 Coast a notice of potential noncompliance in September 2025, a notice of noncompliance in January 2026, and a notice of impending court action in April 2026, none of which prompted a response. CRD is seeking penalties of $100 per employee for the 2024 reporting year and $200 per employee for the 2025 reporting year, along with costs and attorneys’ fees.

A Pattern of Escalating Enforcement

These two new actions follow the same enforcement playbook CRD used in its 2023 action against Cambrian Homecare, Inc. In that case, CRD sued Cambrian Homecare for failing to file pay data reports for three consecutive years. Within three weeks of being sued, Cambrian Homecare filed all of its previously unfiled reports and ultimately agreed to pay a penalty of $70,000 for failing to submit its 2022 pay data report, plus $24,778 in litigation costs to CRD. Cambrian Homecare also agreed to timely file all future reports and consented to the court retaining jurisdiction to enforce the terms of the stipulated judgment for three years.

The new petitions suggest that CRD has refined its enforcement process, which includes escalating notice letters—from a notice of potential noncompliance to a notice of noncompliance and finally a notice of impending court action—before filing suit. In a press release discussing these filings, CRD Director Kevin Kish emphasized the agency’s resolve, stating, “These companies have been repeatedly warned. Now, we’re going to court to ensure compliance with our state’s pay data reporting laws.”

Expanding Reporting Requirements

The pay data reporting landscape continues to evolve. Senate Bill (SB) 464, which took effect on January 1, 2026, now requires covered employers to collect and store demographic information gathered by an employer or labor contractor separately from employees’ personnel records. Additionally, SB 464 requires courts to impose civil penalties on noncompliant employers upon CRD’s request. Beginning January 1, 2027, SB 464 will further increase the number of job categories that covered employers must report on from the ten EEO-1 categories to twenty-three standard occupational classification (SOC) categories.

In addition, California Senate Bill 1237, presented to Governor Gavin Newsom on August 31, 2026, would significantly raise the stakes for noncompliance with these reporting obligations. Under current law, courts shall impose civil penalties of up to $100 per employee for a first failure to file the required pay data report and up to $200 per employee for subsequent failures. SB 1237 would increase the penalty for subsequent failures fivefold—to up to $1,000 per employee—effective January 1, 2027, underscoring the legislature’s intent to drive greater compliance with pay data reporting requirements.

Key Takeaways for Employers

In light of these enforcement actions and the expanding reporting requirements, employers may want to assess their current compliance with California’s pay data reporting obligations. As the Cambrian Homecare settlement demonstrated, the financial consequences of failing to file can be significant, including penalties of up to $100 per employee for a first violation and $200 per employee for subsequent violations, plus CRD’s litigation costs. CRD’s escalating enforcement efforts suggest that a failure to make these required filings could result in legal action and potential economic consequences for nonfilers.

Ogletree Deakins’ California offices, Government Contracting and Compliance Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments with respect to California pay data reporting and will provide updates on the firm’s California, Government Contracting and Compliance, Pay Equity, and Workforce Analytics and Compliance blogs.

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NLRB Returns to Clear Standard for Addressing Abusive Employee Conduct. This week, the National Labor Relations Board (NLRB) abandoned a 2023 ruling (Lion Elastomers LLC II) that made it more difficult for employers to discipline employees for engaging in abusive conduct while simultaneously engaging in activity otherwise protected by the National Labor Relations Act (e.g., shouting racist comments while picketing). In a decision steeped in judicial and NLRB procedure, the Board determined, 3–1, that Lion Elastomers LLC II had been vacated in 2024 by the U.S. Court of Appeals for the Fifth Circuit. This week’s ruling effectively reinstates a 2020 decision that permitted an employer to discipline an employee in such circumstances as long as the employer could demonstrate it would have taken the same action in the absence of the employee’s protected activity. Ryan T. Sears and Zachary V. Zagger have the details.

President Trump Extends $100,000 H-1B Fee, Orders Interagency Coordination.

• On September 18, 2026, President Trump extended Proclamation 10973 (“Restriction on Entry of Certain Nonimmigrant Workers”) (the “2025 Proclamation”), which places a $100,000 fee on H-1B visa holders entering the United States, until September 21, 2027. According to this most recent proclamation, “The restrictions enacted by the 2025 Proclamation have proven to be highly effective but the underlying conditions necessitating the restrictions persist.” Three separate and ongoing legal challenges have been filed against the original 2025 Proclamation. Thus far, the U.S. District Court for the District of Columbia has upheld the authority of the president to enact the fee, while the U.S. District Court for the District of Massachusetts has ruled that the fee is an unauthorized use of Congress’s taxing authority. Both of those decisions are on appeal.

• On September 18, 2026, President Trump also issued an executive order, entitled, “Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program.” The executive order instructs the secretaries of state, labor, and homeland security, when adjudicating and processing H-1B related petitions or applications, to “take into account … whether the employer sponsor directly or indirectly engaged in layoffs within the previous year or plans future layoffs that negatively affect the employment of similarly situated United States workers.” The executive order further instructs the administrator of the U.S. Department of Labor’s Wage and Hour Division to “begin reviewing data related to previously submitted labor condition applications to determine whether further action against sponsoring employers is warranted.” Daniela Medrano Sullivan explains how this order may impact employers.

Justice John Marshall Harlan II. On September 23, 1971, John Marshall Harlan II, associate justice of the Supreme Court of the United States, retired from the Court due to ill health. (He died from cancer just months later on December 29, 1971.) Harlan, whose grandfather, John Marshall Harlan, was the sole dissenting vote in Plessy v. Ferguson, served on the Court from 1955 to 1971—a period generally described as the “Warren Court.” Harlan’s 1955 confirmation hearing before the Senate Judiciary Committee began the tradition of Supreme Court nominees testifying before the committee. (Other nominees had testified in the past—beginning in 1925 with nominee Harlan Fiske Stone—but it was a sporadic practice.)

A strong supporter of the First Amendment, Harlan wrote the majority opinion in the 1958 case, National Association for the Advancement of Colored People v. Alabama. In that case, the Court ruled that the Fourteenth Amendment protected the NAACP from being compelled to disclose its membership list to the State of Alabama. Harlan wrote, “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”