Quick Hits

• USCIS will end its practice of automatically extending EADs for foreign nationals who file renewal applications—including for adjustments of status and H-4 EAD renewals—based on certain employment authorization categories. The new policy will not affect automatic extensions granted for EAD applications filed before October 30, 2025.
• If an EAD renewal application (Form I-765) was timely filed before the EAD expiration and before October 30, 2025, then it is not impacted and is still eligible for the auto-extension.
• If an EAD renewal application (Form I-765) is filed on or after October 30, 2025, then it is impacted by the policy change. Impacted individuals will need a valid EAD card in hand to continue working.

Background

Certain foreign nationals in the United States are eligible to apply for employment authorization by filing Form I-765 with U.S. Citizenship and Immigration Services (USCIS). Under previous temporary final rules and a December 2024 final rule that took effect on January 13, 2025, USCIS granted eligible foreign nationals an automatic extension of employment authorization for up to 540 days while their timely filed employment authorization applications were pending adjudication.

Scheduled for publication on October 30, 2025, and affecting employment authorization applications filed on or after October 30, USCIS will no longer automatically extend employment authorization for individuals previously eligible under the 2024 rule, unless required by law or notice in the Federal Register for employment authorization related to Temporary Protected Status (TPS). DHS indicates it is prioritizing proper vetting and screening of noncitizens before extending employment authorization and that ending the practice of automatic extensions is consistent with President Donald Trump’s executive orders titled “Protecting the American People Against Invasion” (Executive Order 14159) and “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats” (Executive Order 14161).

Impact

The IFR does not impact automatic extensions of employment authorization granted to EAD renewal applicants who filed timely renewals prior to October 30, 2025, and who were previously eligible for a 540-day extension. Automatic extensions of employment authorization provided by Federal Register notice for TPS-related employment authorization or by law—such as STEM Optional Practical Training (OPT) EAD renewals filed by F-1 students—are not impacted by this IFR.

The IFR states that agencies that utilize EADs for other purposes, such as to verify an individual’s identity or immigration status, should no longer consider an expired EAD valid unless the applicant can present an I-797 receipt notice demonstrating a timely filed EAD renewal before October 30, 2025.

USCIS’s SAVE system, used by government agencies to verify benefit eligibility and licensing determinations, will provide results that indicate the expiration of employment authorization (if any) and will not include the previous maximum 540-day automatic extension period. Common EAD categories are listed below. For the full list, please visit USCIS’s website.

What This Means for Employers

Employees in affected categories who file timely EAD renewal applications on or after October 30, 2025, will no longer be able to rely on an automatic extension of employment authorization when their existing EADs expire. Depending on USCIS processing times, employees who rely on a valid EAD as their sole basis for employment authorization may face a gap in employment authorization. Additionally, USCIS will provide updated guidance for employers regarding I-9 verification for the impacted EAD categories via I-9 Central and in its Handbook for Employers, M-274.

Ogletree Deakins’ Immigration Practice Group will monitor developments with respect to these and other policy changes and will provide updates on the Immigration blog 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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Quick Hits

• In Galarza v. One Call Claims, LLC, No. 23-13205 (October 16, 2025), a three-judge panel of the Eleventh Circuit Court of Appeals unanimously reversed a federal district court’s 2023 ruling that insurance adjusters were independent contractors for One Call Claims and the Texas Windstorm Insurance Association.
• The court concluded that the employers managed the adjusters’ work schedules, controlled their pay rates, directed work tasks, and limited their ability to work for other businesses. Accordingly, a jury could reasonably find that the workers were employees.

Under the Fair Labor Standards Act (FLSA), these factors may be relevant in determining whether an individual is an employee or independent contractor:

• the degree of the employer’s control over the work;
• the individual’s opportunity for profit or loss based on managerial skill;
• the individual’s investment in materials or hiring additional workers to complete the work;
• the degree to which the work requires a special skill;
• the degree of permanency and duration of the working relationship; and
• the extent to which the work is an integral part of the employer’s business.

Background

Texas Windstorm Insurance Association provides wind and hail insurance for properties on the Texas coast. One Call Claims is an outsourcing company that matches insurance companies’ needs with a roster of licensed adjusters and examiners. Three insurance adjusters sued the two organizations for allegedly misclassifying them as independent contractors and failing to pay them overtime compensation for hours worked above forty hours in a week.

In 2017, One Call Claims assigned the plaintiffs to adjust insurance claims for Texas Windstorm Insurance Association following Hurricane Harvey. The contracts between One Call Claims and the plaintiffs classified the plaintiffs as independent contractors and specified that their employment was temporary. The contracts also indicated that the plaintiffs would work up to ten hours per day, with hours determined by Texas Windstorm Insurance Association.

One Call Claims invoiced Texas Windstorm Insurance Association for each day of work provided by the plaintiffs and paid them a nonnegotiable daily rate. Texas Windstorm Insurance Association did not record or track the exact hours worked by the plaintiffs. The plaintiffs could choose when to start and end their workdays and when to take lunch breaks. The adjusters were provided with email accounts, a computer network, applications, and software. For teleworking, the plaintiffs were responsible for providing their own workspaces, internet service, cellphones, and computers.

The insurance adjusters argued that they should have been classified as employees because One Call Claims set their pay rate, and Texas Windstorm Insurance Association restricted opportunities to earn more through outside employment. The plaintiffs also claimed that Texas Windstorm Insurance Association set their work schedules, directed their daily tasks, reviewed their timesheets, and could dock their pay for unreported absences or tardies. The plaintiffs were prohibited from working on Sundays. The plaintiffs claimed Texas Windstorm Insurance Association used software to track performance metrics, including when they worked, how fast they typed, and how many words they typed.

In contrast, One Call Claims and Texas Windstorm Insurance Association argued that the plaintiffs were properly considered independent contractors because the plaintiffs maintained sufficient control over how they handled claims adjustments. The defendants also claimed the plaintiffs were free to market their services to other companies, as long as any outside employment didn’t interfere with or conflict with their job duties and obligations to the defendants.

On August 29, 2023, the U.S. District Court for the Southern District of Alabama granted summary judgment to the defendants, finding that the plaintiffs were independent contractors and, therefore, not eligible for overtime pay. The plaintiffs appealed.

The Eleventh Circuit’s Decision

Using a set of six factors from a 2013 case, Scantland v. Jeffrey Knight, Inc., the Eleventh Circuit reversed the district court’s grant of summary judgment and found that a jury could reasonably determine that the workers were employees. The defendants argued that the workers had an opportunity for profit because they exerted control over certain expenses, such as transportation, meals, lodging, internet service, and phone service, but the court found that “many of them are little more than personal expenses” and that “cutting costs where possible on mostly personal expenses to save money has nothing to do with a worker’s ability to ‘earn additional income,’ let alone the ability to do so through initiative and managerial skill.” (Emphasis added by the court.)

Although the plaintiffs paid for their license fees, membership dues, travel expenses, and insurance premiums, the court concluded that the defendants supplied the bulk of the equipment and materials necessary for the work. Thus, that factor weighed in favor of employee status.

The court did note that the insurance adjusters had acquired their training and licenses before starting the assignment, so the skill factor weighed in favor of their classification as independent contractors. Additionally, the court stated, “a jury could reasonably conclude that the companies exerted sufficient control over the manner in which the workers performed their tasks so as to suggest that the workers were not a ‘separate economic entity’ distinct from the companies.”

Considering the permanency and duration of the working relationship, the court reasoned that the employers had “retained the workers for an indefinite and extendable period of time during which the workers did not service any other companies, supporting employee status.” It also noted that the plaintiffs were an integral part of the employers’ business models.

Finally, the court noted that when viewing the facts in a light most favorable to the plaintiffs on summary judgment, “the workers acted more like employees depending on an employer than independent contractors with their own businesses.”

Next Steps

This decision sheds light on the circumstances under which courts may determine that workers classified as independent contractors can be classified as employees, and it may serve as a reminder of the value of thoroughly analyzing the economic realities of a worker’s relationship with the company. In this case, the court concluded that five of the six factors in the economic realities test weighed in favor of the insurance adjusters’ being employees, while only one factor suggested that they were independent contractors. Further, although these plaintiffs were permitted to work for other companies, the court found that they did not actually do so during their employment—a controlling economic reality that weighed in favor of their employee status.

Going forward, companies may want to take all six factors into account when classifying workers as employees or independent contractors. More importantly, they may wish to consider the economic reality of the situation, which can affect how courts will view the workers’ classification.

Ogletree Deakins will continue to monitor developments and will provide updates on the State Developments and Wage and Hour blogs as new information becomes available.

Margaret Santen is a shareholder in Ogletree Deakins’ Charlotte and Atlanta offices.

Virginia M. Wooten is a shareholder in Ogletree Deakins’ Charlotte 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 Federal Labor Court of Germany ruled on October 23, 2025, that gender-based discrimination is presumed if a woman earns less than a comparable male colleague, even if he is a top earner.
• The court clarified that the presumption of gender-based discrimination does not require a “preponderant probability” and that the size of the male comparator group and median pay levels are irrelevant; the employer must rebut the presumption if a female employee shows that a male colleague performing equivalent work is paid more.

Background

In the case at hand, a female employee sought retroactive equal pay with respect to several remuneration components of certain male colleagues. She based her claims, inter alia, on information provided by the employer in an intranet “dashboard” made available for the implementation of the German Pay Transparency Act (Entgelttransparenzgesetz). The pay of the comparators she identified exceeded the median pay level of all male employees in the same hierarchical tier. The employer argued that the cited top-earning colleagues did not perform the same work or work of equal value. It further submitted that the lower pay was justified by performance deficiencies on the employee’s part.

The Regional Labor Court of Baden-Württemberg (judgment of October 1, 2024 – Ref. No. 2 Sa 14/24) dismissed the employee’s claims for payment of the difference up to the pay of the highest-earning comparator and awarded only the difference up to the median. It reasoned that the presumption of gender-based discrimination could not be based solely on a single comparator of the other sex. Given the size of the male comparator group and the median pay levels of both sexes, there was, in its view, no preponderant probability of gender-based discrimination.

Decision of the Federal Labour Court

The Federal Labor Court partially set aside the decision of the Regional Labor Court and remitted the matter for further findings of fact.

However, the Federal Labor Court clarified that no “preponderant probability” of discrimination is required, as such a standard would be incompatible with EU law. Rather, gender-based discrimination is already to be presumed where the employee shows, and where necessary proves, that the employer pays a male colleague who performs the same work or work of equal value a higher pay level. It is then for the employer to rebut that presumption. The size of the male comparator group and the amount of the median pay levels of both groups of workers are irrelevant in the question of whether gender-based discrimination exists.

Outlook

Although the principle of “equal pay for equal work or work of equal value” and the requirement for a transparent pay structure already apply today, the Federal Labor Court’s judgment serves as a wake-up call for all companies that have still not prepared for the implementation of the European Union’s pay transparency directive (Directive (EU) 2023/970). The member states must implement the directive’s requirements by June 7, 2026. In Germany, an expert commission is expected to submit proposals to the competent ministry for implementing the pay transparency directive by the end of October 2025.

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

Dr. Ulrike Conradi is a managing partner in the Berlin office of Ogletree Deakins.

Teodora Ghiniou is a law clerk in the Berlin office of Ogletree Deakins.

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Quick Hits

• Recent case law has indicated a gradual shift toward holding employers liable for employees’ sexual misconduct.
• To expand this liability for employers while acknowledging the risk of creating too much liability, the rule only applies to sexual assault that meets specific criteria, including only applying in circumstances where the victim is “particularly vulnerable.”
• This rule only applies to employer-employee relationships and does not create any liability for actions of independent contractors.
• Although restatements are not law, they do provide persuasive authority for the courts.
• Higher-risk industries include healthcare, hospitality, education, religious institutions, and law enforcement.

Reflecting a gradual trend toward increased employer liability for the sexual misconduct of employees, ALI recently issued guidance suggesting expanded vicarious liability for employers in certain specific circumstances.

ALI believes that this special rule, approved at ALI’s annual meeting in May 2025, furthers the goals of deterrence, compensation, and fairness by encouraging “employers to research, develop, and identify new mechanisms to address and mitigate foreseeable human error”; allowing victims to recover from an employer, not just the offending employee who may have limited assets; and holding employers liable for the “foreseeable consequences that flow” from an employment relationship that it forged and benefited from which ultimately “facilitated its employee’s sexual misconduct.”

The rule suggests the imposition of liability on employers for sexual assaults committed by their employees in specific situations that involve the following circumstances: (1) “a reasonably foreseeable risk of sexual assault,” (2) a victim who is “particularly vulnerable, by reasons of age, mental capacity, disability, incarceration, detention, confinement, medical need, or other similar circumstance,” (3) “the employer facilitat[ing] the sexual assault by providing the employee with substantial power, authority, or influence over the victim,” and (4) sexual assault that “occurs when the employee is performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control.”

In the comment to the rule, the drafters provide numerous examples illustrating when these requirements are and are not met. The foreseeability requirement is met in instances where “the employer’s business or activity creates an environment in which an employee’s sexual assault is a reasonable possibility.” Providing further detail around age-based vulnerability, the authors explain that age is a consideration when the victim is of a “tender or advanced age,” not just when there is an age differential, no matter how significant the age gap may be. As for the third requirement, the drafters distinguish between victims over whom the employer does or does not have power. While a caregiver does have power, authority, or influence over a patient, the caregiver may not have such power, authority, or influence over that patient’s relative. Finally, the comment also explicitly excludes supervisor-subordinate relationships and an employee’s sexual assault of another employee from this rule, explaining that (1) subordinate employees are not particularly vulnerable; (2) a supervisor has limited power, authority, or influence over an employee; (3) the ubiquitous nature of supervisor-subordinate relationships would greatly expand the reach of the special rule; and (4) Title VII of the Civil Rights Act of 1964, “a relatively well-developed body of federal law, … governs employer liability for sexual harassment and sexual assaults of its employees.”

All four of these requirements must apply, and if they do, an employer may be found strictly liable for sexual assault committed by its employee.

Considerations for Employers

This expanded liability underscores the value in investing in preventive measures, particularly in workplaces where there is a higher risk of sexual assault that meets the requirements of this rule. Employers may want to consider taking the following actions and/or reviewing existing policies and procedures to reduce risk:

• performing thorough background and reference checks on employees, particularly those who will work with particularly vulnerable individuals;
• preparing and disseminating policies on workplace violence prevention and workplace safety obligations;
• conducting training for all employees to communicate rules, risks, and reporting procedures for any suspected inappropriate behavior;
• conducting various trainings, including bystander and other workplace safety/violence prevention trainings for employees;
• ensuring there is a clearly communicated reporting policy in place that employees can easily follow to report any concerns;
• ensuring multiple avenues for reporting concerns exist, including anonymous hotlines;
• thoroughly investigating any reports of concerning behavior or inappropriate conduct and administering appropriate disciplinary action; and
• evaluating current surveillance measures, and, if needed, enhancing those measures in areas where there is less employee oversight and higher risk (in accordance with applicable law).

Where to Learn More

Ogletree Deakins’ Workplace Investigations and Organizational Assessments will continue to monitor developments and will provide updates on the Employment Law, Workplace Investigations and Organizational Assessments, and Workplace Violence Prevention blogs as additional information becomes available.

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Quick Hits

• Discrimination claims often hinge on the motive behind employment decisions, leading to extensive scrutiny of the decision-maker’s comments, knowledge, and timing, with plaintiffs’ lawyers seeking to expand the field of scrutiny and defense lawyers aiming to limit it to a single, unbiased decision-maker.
• Involving multiple people in employment decisions can increase the risk of unhelpful evidence and bias claims, as seen in scenarios where delayed communication and additional input complicate the defense and potentially introduce retaliation claims.

Yet, the defendant itself can sometimes be its own worst enemy here, making more targets for the plaintiff to shoot at. Why do multiple people become involved in making the decision? Perhaps those with authority take solace from being able to share the responsibility. Perhaps modern management styles compel those with authority to “empower” others with decisional input. Or perhaps those in authority simply are not sure what to do. Afterall, firing an employee is a major step that can bring with it (unwanted) attention, time costs, and monetary expenses.

The more people involved in the decision, however, the greater the risk that some kind of unhelpful evidence emerges. The more people there are giving input, the more targets plaintiff’s counsel has in the search for bias. And, the more people involved, the longer the decisional process. The passage of time itself allows for further developments that may also prove unhelpful to the defense.

Imagine two different scenarios where “too many cooks” could spoil the defense broth.

1. The manager with decisional authority knows upon hearing about misconduct that he is going to fire the employee, once the misconduct is verified. The manager asks human resources to investigate. But even after the misconduct is confirmed, that fact is not immediately communicated to the manager. Instead, among other things, the human resources leader polls others on her team about what they think should happen, and then makes a recommendation to the manager. In the meantime, the manager discusses the issue with other members of his team, some of whom offhandedly weigh in with their own thoughts. Instead of a straightforward defense that there is no evidence the single decision-maker had any prohibited bias, the defendant may find itself having to explain away the alleged bias of one or more of the others whose views had been directly or indirectly conveyed to the manager.

2. A high-level manager advises that an employee should be discharged, but leaves the final decision to a group of managers. Instead of acting immediately on the guidance, the group of managers continues to discuss options including lesser forms of discipline. In between the guidance and the final decision, however, the plaintiff files a complaint with human resources that she has been the target of discrimination. Now, instead of a straightforward decision by a high-level manager who has no known bias, the defense must deal not only with the discrimination case (and more targets for bias), but also with a retaliation claim that would not have existed if the guidance had simply been carried out immediately.

There may often be good reason for consultation and investigation, but sometimes less is more.

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

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Shutdown Update. This is day twenty-four of the 2025 federal government shutdown, and Republicans and Democrats remain at loggerheads. The U.S. Senate has voted—unsuccessfully—twelve times on the continuing resolution (CR) passed by the U.S. House of Representatives. As the shutdown drags on, however, the CR grows more stale, as it only extends current funding levels until November 21, 2025. So, as the shutdown creeps closer and closer to November 21, 2025, the less viable the current CR becomes in terms of its goal of buying time to negotiate. If lawmakers are forced to pivot to a lengthier funding patch, this could provide an off-ramp from the current shutdown traffic jam.

Also this week, the U.S. Senate failed to pass the Shutdown Fairness Act (S.3012), which would have provided pay to federal government workers—such as Transportation Security Administration employees and air traffic controllers—who are required to work without pay during the shutdown. Three Democrats—Senators John Fetterman (PA), Jon Ossoff (GA), and Raphael Warnock (GA) —joined the Republicans in voting in favor of the bill.

As for the ongoing impacts employers are feeling as a result of the shutdown, the Administrative Office of the U.S. Courts announced that as of October 20, 2025, U.S. federal courts no longer had funding to fully operate and instead would only be able to “maintain limited operations necessary to perform the Judiciary’s constitutional functions.” This means that federal judges will continue to serve, but staff will be limited. According to the announcement, “[e]ach appellate, district, and bankruptcy court will make operational decisions regarding how its cases and probation and pretrial supervision will be conducted during the funding lapse.”

H-1B Proclamation Update: USCIS Issues New Guidance. On October 20, 2025, U.S. Citizenship and Immigration Services (USCIS) published further guidance on the practical application of President Donald Trump’s September 19, 2025, proclamation denying processing of H-1B petitions and entry into the United States by H-1B visa holders unless accompanied by a payment of $100,000. The key points:

• Scope. According to the guidance, the proclamation applies to H-1B petitions filed on or after September 21, 2025, “on behalf of beneficiaries who are outside the United States and do not have a valid H-1B visa.” The guidance also states that the “Proclamation does not apply to previously issued and currently valid H-1B visas.” (Emphasis added.) The proclamation also does not apply to petitions requesting an amendment, change of status, or extension of stay for a foreign national inside the United States. H-1B holders who travel outside the United States will not be subject to the fee upon their return.
The proclamation will apply if the petition requests consular notification, regardless of where the petitioner is located. Similarly, if the petition requests a change of status or amendment or extension of stay but is denied (e.g., because the petitioner departs the United States prior to the adjudication of a change of status request), then “the Proclamation will apply and the payment must be paid according to the instructions provided by USCIS.”


• Exceptions. Regarding exceptions, the guidance notes that they should be “extraordinarily rare.” The guidance further speaks specifically about the “alien worker” and does not discuss potential companywide or industrywide exceptions, even though the proclamation states its restriction on entry “shall not apply to any individual alien, all aliens working for a company, or all aliens working in an industry,” if the secretary of homeland security determines that their hiring “is in the national interest.”
Additionally, the guidance sets forth the criteria under which an exception may be granted: (1) the secretary finds that the H-1B worker’s presence is in the national interest; (2) no American workers are available to fill the role; (3) the H-1B worker does not pose a threat to national security; and (4) requiring the employer to pay the fee “would significantly undermine the interests of the United States.”

Philip K. Sholts and Maurisa Iacono have the details.

H-1B Proclamation Update: U.S. Chamber of Commerce Files Legal Challenge. The U.S. Chamber of Commerce filed a legal challenge to President Trump’s proclamation. The lawsuit is the second legal challenge to the proclamation. Like the first lawsuit, the Chamber alleges that the proclamation exceeds the president’s authority and contravenes the “carefully crafted” H-1B program that the U.S. Congress created in the Immigration and Nationality Act. The complaint argues that “the President may not use his control over entry into the United States to supplant or nullify Congress’s statutorily enacted immigration policy.” The complaint requests that the U.S. District Court for the District of Columbia enjoin the implementation and enforcement of the proclamation as to the Chamber and its members.

Comment Docket Closes on H-1B Selection Proposal. In more H-1B-related news, today, October 24, 2025, is the deadline for stakeholders to submit comments in response to USCIS’s notice of proposed rulemaking, titled, “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H–1B Petitions.” The proposal revives a regulation from the first Trump administration that would prioritize higher-skilled and higher-paid petitioners in the H-1B selection process. The administration will likely try to finalize this rule in time for the fiscal year (FY) 2027 H-1B cap season beginning in March 2026.

Senate Committee Holds Second Hearing on Labor Reform. On October 22, 2025, the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing, titled, “Labor Law Reform Part 2: New Solutions for Finding a Pro-Worker Way Forward.” As the name indicates, the hearing follows a similar hearing held by the HELP Committee on October 8, 2025. Witnesses discussed the Employee Rights Act and SALT Act, as well as the Unlocking Benefits for Independent Workers Act and the Modern Worker Empowerment Act, among other bills.

Edward D. Baker: Lawyer, Politician, Soldier. Senator Edward D. Baker died on October 21, 1861. A lawyer from Illinois, Baker got his start in national politics in 1844 by defeating his close friend, Abraham Lincoln, to win the nomination and a seat in Congress as a Whig. On December 24, 1846, Baker resigned his position to lead a regiment of the Illinois Volunteer Infantry in the Mexican–American War. After the war, Baker returned to Congress, representing a different district in Illinois for one term, then moved to San Francisco, California, in 1852 to establish a law firm, and ultimately settled in Oregon (which was admitted to the Union on February 14, 1859), where he was elected to the U.S. Senate as a Republican in 1860. When the Civil War broke out in April 1861, Baker retained his seat in the Senate while volunteering to lead a regiment of the Pennsylvania Volunteer Infantry. He was killed just months later, on October 21, 1861, at the Battle of Ball’s Bluff, Virginia. Baker remains the only sitting U.S. senator to have died in military combat.

Quick Hits

• Requests for personal information are increasing across Canada, and timelines are tight. HR teams that plan ahead can avoid last-minute scrambles and compliance headaches.
• Whether federal, provincial, public, or private, every regime expects careful handling of personal data and specific timelines and exemptions to consider.
• A clear playbook, trained staff, and mapped data make access requests manageable. The organizations that invest in readiness protect privacy, reduce risk, and build trust.

This is the second article in a four-part series aligned with Cybersecurity Awareness Month, which occurs annually in October. Part 1 discusses compliance tips for U.S. privacy leaders handling practical data rights requests, Part 3 discusses tips and strategies under analogous privacy laws in the European Union, and Part 4 covers the considerations for responsible use of artificial intelligence (AI) and automated decision-making tools (ADMTs).

For employers and businesses operating across multiple provinces or straddling public, private, and federally regulated sectors, the challenge is acute. In Ontario, for example, a private-sector employer that isn’t federally regulated may have no legal obligation to give employees or applicants access to their own “employee personal information,” yet the same company must respond to a consumer’s access request for customer data.

In short, access rights in Canada are real, rising, and relentlessly nuanced. Organizations need preparation, training, and disciplined workflows to stay compliant, meet timelines, and minimize legal risk.

The Patchwork Problem: Who Is Covered by Which Law?

Across the country, different rules apply depending on who holds the information and who is asking for it. The result is a network of similar legal tracks that sometimes overlap and occasionally collide.

Federal public sector: At the federal level, public institutions are covered by the Privacy Act, which gives individuals a right to access personal information held by federal bodies and sets out timelines, exemptions, and review processes.

Provincial public sector: Provincial and territorial public sectors operate under their own freedom of information and privacy statutes, each with different names and nuances. These laws generally provide access to records in the custody or control of public institutions, along with specific exceptions and review rights.

Private sector: In the private sector, consumer access to personal information is primarily governed by the Personal Information Protection and Electronic Documents Act (PIPEDA), Canada’s federal private-sector privacy law. Some provinces have adopted their own legislation that is considered “substantially similar.” Health information often falls under separate health privacy statutes.

Employee data: Employee information adds another layer. For federally regulated employers, PIPEDA governs employee access requests. For provincially regulated employers, the picture varies: only certain provinces have privacy statutes that extend access rights to employees, though other employment or sectoral laws may provide access to specific records.

Together, these rules create a complex matrix. Organizations operating across Canada will want to understand how access rights differ by sector, jurisdiction, and requestor type, whether the request comes from a consumer, an employee, a job applicant, or a third-party representative.

Access Is Not Carte Blanche: Withholdings, Severance, and Exemptions

Access rights across Canada are powerful but not unlimited. Privacy laws in every jurisdiction set boundaries to protect individuals, organizations, and the public interest.

Privacy and confidentiality. Access requests can involve third-party personal information or confidential business data. In some cases, organizations may need to consult or notify affected parties before deciding what to release. Most of the privacy laws also prohibit releasing information that identifies another individual and sharing it can create compliance risks. For example, if an applicant requests access to interview notes and those notes include the names or responses of other candidates, releasing that information could breach their privacy. Similarly, if a complaint file reveals the identity of the person who raised the concern, disclosure could create a risk of harm for that individual.

Legal privilege and investigations. Records tied to legal advice, disputes, or investigations are often exempt. Many laws also protect materials created for formal resolution processes.

Safety and public interest. Disclosure can be limited if it could endanger someone’s safety, affect law enforcement, or compromise an ongoing investigation. Some laws also allow or require proactive disclosure when health, safety, or environmental risks are at stake.

Custody and control. Access generally applies only to records an organization holds or controls. Determining what falls within scope can depend on where and how information is stored.

Severance. If exempt information can be separated, the rest of a record may still be shared.

An emerging trend involves job applicants asking for access to interview notes or emails. These requests can raise questions about confidential evaluations, third-party information, and privilege. Access does not automatically extend to internal assessments or legal advice, and some content may be protected or only partially releasable.

Timelines and Extensions: Meeting the Clock

While the specifics vary, most Canadian access regimes set a baseline thirty-day response period, with some provinces offering the possibility of a one-time extension (often up to an additional thirty days) for large volumes, complex searches, consultations, or operational interference. Many public-sector statutes also impose a “duty to assist” and require detailed response letters, including reasons for refusal and review/complaint rights. Failure to respond within the statutory period is typically deemed a refusal, triggering review rights.

Below is a consolidated, high-level chart focused on private-sector entities. This review is not exhaustive. For public bodies, most statutes set a thirty-day baseline with defined extension grounds; always verify the precise requirements in the applicable law.

Access Request Timelines—Private-Sector Entities

* Common extensions are summarized. Actual grounds, durations, and notice requirements are statute-specific and may require written notice specifying reasons and review rights.

Practical Readiness

Many organizations fail to respect timelines on responding to access requests not because the issues are complex, but because coordination stalls. A few practical habits can make the difference:

• Clear ownership: Employers may want to set up a single intake point for access requests and who is responsible if this person is on vacation or not available. Try to set up employees and applicants so they are aware whom to contact and how the process works. Having an email address such as Privacy@company or Access@company can be helpful to ensure the email is always monitored.
• Smart training: Training HR, recruiting, and managers on what belongs in personnel and applicant files is important for compliance with the various laws. Employers may want to review templates for interview notes and evaluations, and write with the expectation that content may one day be reviewed.
• Data awareness: Employers may want to keep an updated map of systems and service providers that hold personal information. In addition, employers will want to check that contracts support access rights and don’t create barriers to lawful disclosure.
• Simple procedures: Using checklists for intake, ID verification, scoping, searches, and legal review are useful methods for maintaining compliance with the privacy laws. Employers will want to track deadlines and extensions to stay on top of statutory timelines.
• Quick-reference guide: Maintaining a short “exceptions” playbook covering common exemptions such as third-party information, privilege, confidential business data, and investigatory records is another key consideration. Employers may want to include tips for severance and consultations for the team responsible for handling requests in their playbooks.
• Verifying before sharing: Confirming the requester’s identity or authority can reduce the risk of fraud or misdirected disclosures.

Access laws are designed to give people meaningful access to their own information, not to create unnecessary burden. Knowing what can be shared, what can be withheld, and how to meet deadlines helps HR teams protect both privacy and organizational integrity.

Next Steps

As requests multiply and media attention grows, organizations face rising expectations for speed, accuracy, and fairness. The challenge lies not only in meeting strict timelines and parsing exemptions, but in managing the messy realities of multijurisdictional operations, legacy systems, and unclear data ownership.

For employers, this shift is particularly significant. Employee and applicant access requests are becoming more common, and even when not legally mandated, mishandling them can erode trust, invite complaints, or draw regulatory scrutiny.

The solution: building a coherent, cross-Canada access playbook that harmonizes timelines, clarifies who owns each step of the process, and trains teams on how to search, sever, and respond with precision can help employers meet their legal, privacy, and security challenges. Strong contract terms with vendors, solid record management, and clear escalation protocols are critical safeguards.

Bottom line: organizations that treat access rights as part of everyday governance—not an ad hoc legal fire drill—will stay ahead of regulators, strengthen employee and consumer confidence, and turn a compliance obligation into a trust-building opportunity.

Ogletree Deakins’ Calgary, Montréal, and Toronto offices, Cross-Border Practice Group, and Cybersecurity and Privacy Practice Group will continue to monitor developments and provide updates on the Cross-Border and Cybersecurity and Privacy blogs as additional information becomes available.

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Quick Hits

• Governor Pritzker signed into law new employment–related enactments, such as the Workers’ Rights and Worker Safety Act.
• Existing laws, such as the Illinois Human Rights Act, the Illinois Workplace Transparency Act, and the Employee Blood and Organ Donation Act, have been amended.
• Most notably, effective June 1, 2026, the new Family Neonatal Intensive Care Leave Act will allow parents time off when their children are receiving care in hospitals’ neonatal intensive care units.

New Illinois Employment Laws

House Bill (HB) 2978 (Public Act 104-0259), or the “Family Neonatal Intensive Care Leave Act,” establishes a requirement for employers to provide unpaid leave while an employee’s child is in the neonatal intensive care unit (NICU). An employer with sixteen to fifty employees must provide ten days of leave, while an employer with more than fifty employees must provide up to twenty days of leave.

Senate Bill (SB) 1976 (Public Act 104-0161), or the “Workers’ Rights and Worker Safety Act,” states that if, after April 28, 2025, a federal Occupational Safety and Health Act standard is revoked, repealed, or amended to become less effective in providing “safe and healthful employment and places of employment,” the Illinois Department of Labor “shall, as soon as practical … adopt a standard that incorporates the federal occupational health or safety standard as it existed prior to being repealed, revoked, amended, or newly interpreted.”

Expansion of Current Illinois Employment Laws

HB 3638 (Public Act 104-0320) amends the Illinois Workplace Transparency Act. While the law previously stated that no contract or agreement could restrict an employee from reporting unlawful employment practices, it has now been expanded to prohibit contracts or agreements restricting employees from “engaging in concerted activity to address work-related issues.” The definition of “unlawful employment practice” was also amended from “unlawful discrimination, harassment, or retaliation” actionable under certain laws, to “any practice made unlawful” by the Illinois Human Rights Act, Title VII of the Civil Rights Act of 1964, and other state and federal laws governing employment.

Additionally, employment agreements that purport to shorten any applicable statute of limitation, apply non-Illinois law to an Illinois employee’s claim, or require adjudication of an employee’s claim in a venue outside of Illinois are now against public policy, void, and severable from an otherwise enforceable contract. The amendments also clarify that as part of a separation or settlement agreement, any valid, bargained-for consideration in exchange for confidentiality related to unlawful employment practices must be separate from any consideration provided in exchange for a release of claims. And, while confidentiality related to unlawful employment practices must be “the documented preference of the employee” in order to be included as part of a separation or settlement agreement, employers are now prohibited from unilaterally including any clause in the agreement that states the promises of confidentiality are the preference of the employee.

HB 1278 (Public Act 104-0171) amends the Illinois Victims’ Economic Security and Safety Act to state that an employer cannot discharge, refuse to hire, discriminate against, or retaliate against an employee because the employee used employer-issued equipment to record a crime of violence, including domestic violence and sexual violence, committed against the employee or their family or household member. Employers are also prohibited from depriving an employee of employer-issued equipment because the employee used the device to record or attempt to record such violence, and employers are required to provide an employee access to any photographs or recordings related to a crime of violence stored on an employer-issued device.

HB 1616 (Public Act 104-0193) amends the Employee Blood and Organ Donation Leave Act to allow part-time employees to take leave for organ donation. Previously, only full-time employees could use leave time for organ donation.

SB 0212 (Public Act 104-0076) amends the Nursing Mothers in the Workplace Act to require employers to provide nursing mothers reasonable break time compensated at the employee’s regular rate of compensation. This amendment makes clear that an employer is prohibited from requiring an employee to use paid leave or otherwise reducing the employee’s compensation during this break time.

SB 0220 (Public Act 104-0078) amends the Family Military Leave Act, now titled “The Military Leave Act,” to require employers with fifty-one or more employees to provide employees up to eight hours per calendar month to participate in a funeral honors detail, up to a total of forty hours per year. An employee qualifies for this leave if the employee (1) is trained to participate in a funeral honors detail; and (2) is either a retired or active member of the armed forces, including the Illinois National Guard, or an authorized provider or registered member of an authorized provider. An employee taking leave under this act is entitled to pay at his or her regular rate of pay and may take this leave in lieu of using paid leave, including vacation or personal leave.

HB 3439 (Public Act 104-0307) amends the Child Care Act of 1969 to require that an employee or volunteer of a day care center, day care home, or group day care home undergo a criminal background investigation every five years. This amendment establishes a secure background check program administered by the Illinois Department of Early Childhood in which day care centers, day care homes, and group day care homes may hire an employee or volunteer on a probationary basis after receiving a qualifying result as determined by the Department of Early Childhood.

SB 2487 (Public Act 104-0425) amends the Illinois Human Rights Act to make fact-finding conferences discretionary instead of mandatory for charges of discrimination filed on or before the effective date of the amendatory act.

Next Steps

Employers may want to evaluate their existing employment practices and determine if any new laws will require revisions in their company policies or practices.

Ogletree Deakins’ Chicago and St. Louis offices will continue to monitor developments and will provide updates on the Illinois blog as additional information becomes available.

In addition, the Ogletree Deakins Client Portal tracks developments and provides real-time updates on Illinois employment laws. (Full law summaries and template policies are available for Premium-level subscribers; Snapshots and Updates are available for all registered client-users.) For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

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Quick Hits

• On October 20, 2025, USCIS issued guidance clarifying that the $100,000 payment applies to certain H-1B petitions filed on or after September 21, 2025.
• The proclamation impacts prospective H-1B beneficiaries seeking entry from outside the United States, but not current H-1B visa holders or those eligible for change of status within the United States.
• Multiple lawsuits have been filed challenging the proclamation, arguing it exceeds executive authority and violates the Immigration and Nationality Act and Administrative Procedure Act.

USCIS confirmed this proclamation applies only to prospective H-1B beneficiaries who are seeking entry into the United States from outside of the country, and it is not applicable to current H-1B visa holders or other foreign nationals in the United States eligible for change of status to H-1B. For example, F-1 OPT students eligible for change of status to H-1B in calendar year 2026 (fiscal year 2027) are not affected by the proclamation.

Background

The “Restriction on Entry of Certain Nonimmigrant Workers” proclamation, issued on September 19, 2025, announced a $100,000 payment instituted on H-1B petitions, and was later clarified by a White House fact sheet, government memoranda, and most recently, formal USCIS guidance. Starting at 12:01 a.m. eastern daylight time on September 21, 2025, the proclamation imposed a restriction certain H-1B workers’ entry into the United States unless a $100,000 payment has been submitted or a national interest exception is granted. The proclamation also mandates compliance measures and coordination between the U.S. Department of Homeland Security (DHS) and the U.S. Department of State to enforce these restrictions. The proclamation states that this framework is in place for twelve months, with potential for renewal beyond the initial one-year period.

USCIS Guidance

The $100,000 payment applies to the following types of H-1B petitions filed on or after the effective date of September 21, 2025:

• new H-1B petitions filed on behalf of beneficiaries who are outside the United States and do not already have a valid H-1B visa;
• H-1B petitions that request consular notification, port of entry notification, or pre-flight inspection for a beneficiary inside the United States; and
• H-1B petitions that request a change of status, amendment, or extension of stay and USCIS subsequently determines that the beneficiary is not eligible for the requested change of status, amendment, or extension of stay, or the beneficiary departs the United States prior to adjudication of a change of status request.

The $100,000 payment does not apply in the following scenarios:

• H-1B petitions pending with or approved by USCIS that were filed before the effective date of September 21, 2025;
• H-1B petitions filed on or after the effective date that request an amendment, change of status, or extension of stay for an individual currently in the United States, and are approved as such;
• beneficiaries who apply for an H-1B visa based on H-1B petitions filed on or after the effective date that are approved as an amendment, change of status, or extension of stay; and
• beneficiaries with previously issued and currently valid (unexpired) H-1B visas.

Payment

Petitioners are instructed to submit the $100,000 payment through Pay.gov. USCIS stipulates that where the payment is applicable, petitioners must either make payment or obtain the national interest exception from the secretary of homeland security prior to filing the Form I-129 H-1B petition or risk denial of the petition.

National Interest Exceptions

USCIS states that exceptions to the $100,000 payment can be granted in the “extraordinarily rare circumstance” where the secretary of homeland security finds that a particular foreign national’s presence in the United States pursuant to H-1B status meets the following criteria:

• the foreign national’s presence is in the national interest;
• “no American worker is available to fill the role”;
• the foreign national “does not pose a threat to the security or welfare of the United States”; and
• requiring the petitioning employer to make the payment “would significantly undermine the interests of the United States.”

USCIS instructs petitioners who believe a beneficiary is eligible for an exception to submit an exception request and supporting evidence via email to H1BExceptions@hq.dhs.gov.

Legal Challenges

In response to the proclamation, on October 3, 2025, a group of eleven plaintiffs consisting of a healthcare service provider, labor unions, religious organizations, academic organizations, and individual visa holders filed a lawsuit against the president, the U.S. Department of Homeland Security, the secretary of homeland security, USCIS, the director of USCIS, the U.S. Customs and Border Protection, the commissioner of U.S. Customs and Border Protection, the U.S. Department of State, and the secretary of state. The lawsuit, Global Nurse Force et al. v. Trump, was filed in the U.S. District Court for the Northern District of California, seeking to prevent enforcement of the $100,000 payment and for the proclamation’s sections pertaining to restrictions on entry, adjudication, and visa issuance without fee payment to be declared unlawful.

Additionally, on October 16, 2025, the U.S. Chamber of Commerce, a business association advocacy and lobbying group, filed a lawsuit challenging the proclamation against the U.S. Department of Homeland Security, the U.S. Department of State, the secretary of homeland security, and the secretary of state. The lawsuit was filed in the U.S. District Court for the District of Columbia, seeking declaration that the proclamation exceeds the executive branch’s authority and to enjoin the departments from carrying out the provisions of the proclamation.

Both lawsuits argue that the proclamation, specifically the imposition of a $100,000 payment, exceeds the powers granted to the executive branch and is contrary to congressional intent of the Immigration and Nationality Act (INA), which governs the H-1B visa program; that the proclamation violates the notice and comment requirements under the Administrative Procedure Act (APA); and that the new fee requirement is arbitrary and capricious.

Analysis and Impact

Although previous guidance focused on new H-1B petitions submitted pursuant to the H-1B cap/quota, the proclamation does cover both H-1B cap-exempt and cap-subject employers. Multiple lawsuits challenging the proclamation and seeking injunctive relief are currently pending. In the interim, employers seeking to file H-1B petitions subject to the proclamation may want to consider submitting requests for national interest exceptions.

Ogletree Deakins’ Immigration Practice Group will closely monitor developments with respect to the pending litigation and other policy changes and will post updates on the Immigration blog 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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Quick Hits

• Effective October 1, 2025, California law prohibits discrimination and retaliation against employees (and employees with victimized family members) for taking qualifying leave related to a “qualifying act of violence.”
• Employers with twenty-five or more employees must allow time off for a broadened list of covered activities, subject to reasonable notice and certification.
• The law does not mandate paid leave; employees may use available paid sick leave and other accrued PTO. Leave may run concurrently with federal and state family and medical leave laws where eligibility is met.

Who is a “victim,” and what is a “qualifying act of violence”? AB 406 defines a “qualifying act of violence” to include domestic violence, sexual assault, stalking, and specified acts or patterns of conduct, such as “caus[ing] bodily injury or death”; “exhibit[ing], draw[ing], brandish[ing], or us[ing] a firearm, or other dangerous weapon”; or using or “mak[ing] a reasonably perceived or actual threat to use[] force against another individual to cause physical injury or death.” The definition applies regardless of whether anyone is arrested, prosecuted, or convicted. A “victim” is the “individual against whom a qualifying act is committed,” and protections also extend to employees whose family member (including a designated person) is a victim.

Once a qualifying act of violence is implicated, employees are protected from discrimination and retaliation for taking time off for covered purposes. Those purposes include obtaining or attempting to obtain legal protection (such as temporary restraining orders), seeking or assisting with medical or mental health care, “obtain[ing] services from a domestic violence shelter, program, rape crisis center, or victim services organization,” participating in safety planning or relocation (including securing housing and enrolling children in new schools or childcare), preparing for or attending civil, administrative, or criminal proceedings, seeking civil or criminal legal services, providing care to a family member recovering from injuries, and arranging necessary childcare or care for a dependent adult to ensure safety.

Background and what AB 406 changes. California has long protected time off to obtain crime-related relief and has required reasonable safety accommodations for victims of domestic violence, sexual assault, and stalking. Enforcement authority shifted to the Civil Rights Department in 2025. AB 406 consolidates and expands protections by centering the “qualifying act of violence” framework, expressly covering leave to support family members of victims, and clarifying notice, certification, and confidentiality requirements.

Employer obligations, certification, and confidentiality. Employers may not discharge, discriminate, or retaliate against employees for taking qualifying leave. Employers with twenty-five or more employees must grant leave for the expanded purposes tied to a qualifying act of violence. Employees should provide reasonable advance notice where feasible; for unscheduled absences, employers may request certification “within a reasonable time.” Acceptable certification includes a police report; a court order or court/prosecutor documentation of an appearance; or documentation from a licensed medical or mental health provider, domestic violence or sexual assault counselor, victim advocate, or other documentation reasonably verifying the qualifying act (including a signed statement by the employee or representative). Employers must keep documentation and related information confidential, subject to limited legal exceptions, and should provide reasonable safety-related accommodations through a good-faith, interactive process.

Paid or unpaid leave; limits, and concurrency. AB 406 does not itself require paid leave. Employees may elect to use accrued vacation, personal leave, paid sick leave, or compensatory time off available under employer policy or law; California paid sick leave may be used for covered purposes, including certain court proceedings beginning January 1, 2026. Employers may limit total leave under the family-member provisions to twelve weeks (with narrower limits in specified circumstances), and leave may run concurrently with leave under the federal Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) if eligibility criteria are satisfied.

Next Steps

Employers may want to update policies, forms, and training to reflect the broadened definitions, covered leave purposes, certification standards, notice obligations (including annual written notices of rights), and confidentiality requirements, and ensure HR is prepared to implement the interactive process for safety-related accommodations.

Ogletree Deakins’ California offices and Workplace Violence Prevention Practice Group will continue to monitor developments and will post updates on the California, Leaves of Absence, and Workplace Violence Prevention blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal tracks developments and provides real-time updates on California employment laws, including California Crime Victim Leave. In addition to getting details about the new law and links to state resources, Premium-level subscribers can download a California Leave for Victims of Qualifying Crimes or Acts of Violence Handbook Policy updated to comply with the amended law. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

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