Quick Hits

• On July 17, 2026, DHS published a final rule—scheduled to take effect on September 15, 2026—that would end the longstanding duration of status framework for F, J, and I visa holders.
• A U.S. district court found that the government’s national security justification for the rule was arbitrary and capricious.
• The duration of status framework remains in effect as litigation continues.

On July 17, 2026, DHS published a final rule scheduled to take effect on September 15, 2026, that would replace the duration of status (D/S) admission framework for F, J, and I nonimmigrants with fixed periods of admission. The rule also shortened the departure grace period for F and J visa holders from sixty days to thirty days and imposed a modified unlawful presence framework—one based on failure to timely file an extension-of-stay application rather than a formal U.S. Citizenship and Immigration Services (USCIS) finding of a status violation or an immigration judge’s removal order. Additionally, the rule imposed certain restrictions on F-1 students’ ability to transfer schools or change academic programs.

On August 18, 2026, a coalition of plaintiffs led by the Presidents’ Alliance on Higher Education and Immigration filed a complaint and motion for preliminary injunction in the U.S. District Court for the District of Massachusetts challenging DHS’s final rule. The complaint argued that DHS violated the Administrative Procedure Act, provided an inadequate public comment period, and exceeded its statutory authority. The plaintiffs contended that the changes would create significant uncertainty and administrative burdens for impacted individuals and institutions. On the eve of the rule’s effective date, the district judge in Presidents’ Alliance v. DHS granted nationwide preliminary relief, finding that DHS’s stated justifications were arbitrary and capricious and that allowing the rule to take effect would cause immediate and irreparable harm.

Next Steps

For now, F, J, and I visa holders do not need to apply for extensions of stay with USCIS and those traveling to the United States will continue to be admitted in D/S status. Employers and foreign nationals should remain vigilant and may want to be prepared for a possible reversal while the litigation continues.

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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Quick Hits

• In Ding v. Structure Therapeutics, Inc., the Ninth Circuit held that a plaintiff’s right to proceed in court under the EFAA is not categorically foreclosed by the earlier filing of an arbitration demand asserting non–sexual-harassment claims.
• The court held that where a plaintiff discovers a basis to pursue claims covered by the EFAA during arbitration, the plaintiff may elect to end arbitration and proceed in court.
• The court further held that a sex-based hostile work environment claim under FEHA constitutes a “sexual harassment dispute” under the EFAA.

Background

The plaintiff, a senior executive at a clinical drug development company, began working as the company’s chief financial officer (CFO). As part of her employment, the plaintiff signed an employment agreement that required the resolution of all employment disputes by arbitration. According to her complaint, upon starting her employment, the company’s chief executive officer (CEO) almost immediately began to sideline her, diminish her job responsibilities, and adopt gendered criticisms that she was “too aggressive.” The plaintiff additionally alleged that after she experienced a domestic violence incident, the CEO allegedly belittled her injuries, questioned her ability to continue in her role, and recommended her termination within two weeks of the incident, citing her “domestic situation” as a factor.

The plaintiff initially filed an arbitration demand asserting claims for discrimination, retaliation, and harassment based on national origin and her status as a domestic violence victim. Over the course of a year, the parties engaged in extensive arbitration proceedings, including preliminary hearings, discovery, and discovery disputes. During that process, the plaintiff uncovered new evidence suggesting that the alleged workplace mistreatment she experienced had been motivated by her sex. She then withdrew from arbitration and filed a complaint in state court, asserting sex discrimination and sex-based hostile work environment claims under FEHA. The company removed the action to federal court and moved to compel arbitration. The district court denied the motion, holding that the plaintiff had properly elected to proceed in court under the EFAA. The company appealed.

The Ninth Circuit’s Analysis

Whether an Employee Can Invoke the EFAA After Already Participating in Arbitration

As to whether the plaintiff properly elected to proceed in court under the EFAA despite having already initiated and participated in arbitration, the Ninth Circuit held that the plain text of the EFAA does not limit when a plaintiff may allege a sexual harassment claim and exercise his or her right under the statute. The court stated that the purpose of the EFAA was to provide alleged victims of workplace sexual harassment or sexual assault a “genuine choice” whether to proceed in arbitration or in court, notwithstanding a preexisting arbitration agreement. The court reasoned that the EFAA suggests only that a plaintiff may not make her “election” until the time she is “alleging conduct constituting a sexual harassment dispute or sexual assault dispute.” According to the court, nothing in the text of the EFAA indicates that the earlier filing of other claims extinguishes a plaintiff’s right to decide whether to arbitrate his or her sexual harassment or sexual assault claims, provided the employee did not know that the plaintiff had a plausible sexual harassment or sexual assault claim.

The court further emphasized the EFAA’s legislative purpose, which is to “restore access to justice for millions of victims of sexual assault or harassment who are currently locked out of the court system.” The legislative history repeatedly emphasized the need to give victims a “real choice” to bring their claims in court. To read otherwise, according to the court, would render a plaintiff unable to have her sexual harassment or sexual assault claim heard in court before she even knows that she has such a claim.

Of note, the court clarified that its holding does not mean that a plaintiff may start in arbitration, bring a sexual harassment claim at any time or under any circumstances, and then pursue the claim in court. A plaintiff may waive his or her EFAA rights under ordinary waiver principles—i.e., where a plaintiff is aware of the facts giving rise to a sexual harassment claim and either unduly delays or decides to pursue that claim in arbitration rather than court. In this case, the district court found no evidence that the plaintiff knew that she had a plausible sexual harassment claim but intentionally chose not to bring it when she initiated arbitration. The Ninth Circuit agreed with the district court’s determination.

Sex-Based Hostile Work Environment as ‘Sexual Harassment Dispute’ Under the EFAA

As to whether the plaintiff had plausibly stated a sexual harassment claim within the meaning of the EFAA, the Ninth Circuit looked to FEHA, under which harassment “because of sex includes sexual harassment” and “[s]exually harassing conduct need not be motivated by sexual desire.”

The court held that because “it is the disparate treatment of an employee on the basis of sex … that is the essence of a sexual harassment claim,” a sex-based hostile work environment claim amounts to sexual harassment under California law even when the harassing conduct is not sexual in nature. With all reasonable inferences drawn in the plaintiff’s favor, the court found that she had plausibly pled a sex-based hostile work environment claim based on alleged conduct including the CEO’s alleged preference for a male CFO, his sidelining of the plaintiff and diminishing of her job responsibilities, his adoption of sexist criticisms from male colleagues, and his belittling of her domestic violence experience before terminating her within two weeks of the incident.

Finally, the court noted that because the EFAA invalidates an arbitration agreement “with respect to a case,” rather than a claim, that “relates to” a sexual harassment dispute, the plaintiff was entitled to bring her entire case in court, including her non–sexual-harassment claims.

Key Takeaways

The Ninth Circuit’s decision in Ding v. Structure Therapeutics addressed a plaintiff’s purported discovery of a sexual harassment claim during pending arbitration. The decision creates uncertainties for employers around a plaintiff’s ability to make a mid-arbitration election to invoke the EFAA and the effect such an election may have on the arbitration as a whole.

Ogletree Deakins’ California offices and Arbitration/Alternative Dispute Resolution Practice Group will continue to monitor developments and will provide updates on the Arbitration/Alternative Dispute Resolution, California, and Employment Law blogs as additional information becomes available.

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Quick Hits

• The DOL recently issued guidance indicating that the department intends to focus enforcement on three categories of health plan nonquantitative treatment limitations (NQTLs): (1) plan exclusions and some treatment limitations, (2) medical necessity standards and review process, and (3) standards for determining network adequacy with a focus on network admission standards and provider reimbursement methodologies.
• The DOL will not enforce certain regulations concerning NQTLs that were part of a 2024 final rule.
• The guidance reflects that the DOL will focus on common NQTLs, including treatment limitations, such as prior authorization rules, fail-first or step therapy protocols, medical necessity standards, and network access.

The MHPAEA, as amended in 2021, generally prohibits group health plans from offering health coverage that imposes more restrictive requirements and limitations on mental health and substance use disorder benefits than on medical/surgical benefits.

The EBSA will now focus its primary NQTL enforcement efforts in three areas where the it believes there is the highest potential for significant harm to health plan participants:

• separate plan exclusions and some treatment limitations;
• medical necessity standards and review processes; and
• network adequacy standards, especially focused on network admission standards and provider reimbursement.

Those priorities appear consistent with the DOL’s most recent report to the U.S. Congress summarizing the EBSA’s MHPAEA enforcement activities.

In February 2025, the ERISA Industry Committee, an employer advocacy group, sued to block the DOL’s 2024 final rule to implement the MHPAEA. One key requirement in that final rule was that health plans covering specific mental health conditions or substance use disorders must provide meaningful coverage for that condition in every benefit classification where medical/surgical benefits are provided. The final rule only deems coverage to be “meaningful” if it includes at least one core treatment, meaning a standard therapy, service, or intervention supported by recognized independent standards of current medical practice for that condition in that classification. The final rule also required a plan fiduciary to attest to the plan’s compliance with the NQTL requirements.

In May 2025, federal regulators announced they would not enforce the portions of the 2024 rule that applied to NQTLs that were new compared to the 2013 final rule. The latest guidance confirms that the 2025 nonenforcement policy remains in place.

Principles Guiding Enforcement

The 2026 guidance outlines three enforcement principles:

• Federal regulators will prioritize cases involving blanket treatment exclusions applicable only to mental health and substance use disorder benefits, but may also address more limited plan exclusions, especially in response to participant complaints.
• While group health plans may continue to set narrower medical necessity limits on coverage, federal regulators will focus on prior authorization, concurrent review, and retrospective review provisions. Plan administrators may use proprietary clinical guidelines to make medical necessity determinations, as long as the processes, strategies, and evidentiary standards applied to mental health and substance use disorder benefits are comparable to, and are applied no more stringently than, those for medical/surgical benefits. However, plans must make these guidelines available to EBSA investigators and plan participants upon request.
• Federal regulators will prioritize enforcement of network adequacy rules, including network admission standards and provider reimbursement methodologies. The guidance reflects that regulators will expect the plan to “consider all available options” to ensure adequate in-network coverage for mental health and substance use disorder services.

Next Steps

Employers may wish to carefully review their group health plan design and administration to gauge compliance with the MHPAEA in light of this new guidance, as well as state laws on coverage for mental health and substance abuse disorders. Plan participants have the right to file class-action lawsuits for violations of MHPAEA. Employers that self-insure their group health plan may face an Internal Revenue Service (IRS) excise tax of $100 per day for each individual affected by violations of the MHPAEA.

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

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

Stephanie A. Smithey is a shareholder in Ogletree Deakins’ Indianapolis office.

Timothy J. Stanton is a shareholder in Ogletree Deakins’ Chicago office.

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

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Quick Hits

• Starting January 1, 2027, California’s minimum wage rate will rise to $17.40 per hour, reflecting a 2.99 percent adjustment based on federal inflation data.
• Employers may want to prepare for the upcoming wage adjustment and remain aware of existing higher minimum wage rates for fast food workers, health care workers, and various municipalities throughout California.

The increase is slightly larger than the $0.40 increase that took effect at the start of 2026, and it continues a trend of steady annual growth in California’s minimum wage rate since the state reached $15.00 per hour on January 1, 2023.

Under California Labor Code section 1182.12(c), California’s director of finance must annually calculate an adjustment to the state’s minimum wage rate before August 1 of each year. By law, the adjustment must be the lesser of 3.5 percent or the rate of change in the U.S. Consumer Price Index for Urban Wage Earners and Clerical Workers (U.S. CPI-W), which increased 2.99 percent for the period of July 1, 2025, to June 30, 2026, from the prior twelve-month period.

As with prior increases, higher wage floors already apply to certain workers and localities. A $20.00 per hour minimum wage rate continues to apply to workers at most fast food restaurants in California under the California Food Accountability and Standards Recovery Act (FAST Recovery Act). Certain healthcare workers are also subject to a higher minimum wage under Senate Bill (SB) No. 525. Additionally, several municipalities in California maintain local minimum wage rates that exceed the state requirement, so employers with operations in those jurisdictions should confirm which rate applies.

The increase in the minimum wage will also raise the minimum salary payable to certain white collar, exempt employees under California wage laws. Based on the new $17.40 hourly rate, the minimum annual salary for exempt status will rise to $72,384 from the current $70,304, an increase of $2,080. Employers should remember that satisfying the salary threshold is only part of the exemption analysis. Employees must also meet the duties test and other requirements applicable to the specific exemption claimed.

Next Steps

California employers may want to begin preparations now to ensure that their compensation structures will comply with the new minimum wage rate effective January 1, 2027, along with the higher rates already in effect for fast food workers, certain healthcare workers, and employees in several California municipalities. Employers may also want to update required workplace postings once the state’s 2027 minimum wage order and applicable industry wage order are released, and confirm that pay stubs accurately reflect each employee’s wage rate. Employers may also want to revisit exempt employee salaries now to determine whether adjustments will be needed before the new threshold takes effect.

Ogletree Deakins’ California offices and Wage and Hour Practice Group will continue to monitor developments and will provide updates on the California and Wage and Hour blogs as additional information becomes available.

The Ogletree Deakins Client Portal provides subscribers with timely updates on wage and hour laws, including minimum wage. Our updated minimum wage and minimum wage tip credit law summaries contain state and major locality current minimum wage and tip credit rates, and other future minimum wage and tip credit rates that states and major localities have published and/or announced. Full law summaries 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

• The California State Legislature concluded the second year of its 2025–2026 session on September 1, 2026, and sent its remaining approved bills to Governor Gavin Newsom, including measures addressing automated decision systems, workplace surveillance, pay equity enforcement, bereavement leave, and immigration-related retaliation.
• Governor Newsom must sign or veto bills passed during the legislative session by September 30, 2026, or they will automatically become law.

California Employment Bills Sent to the Governor for Signature

“Enrolled” refers to when the final version of a bill has been approved by both the Senate and the Assembly, proofread for accuracy, and certified by the legislative officers before being sent to the governor for approval or veto.

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

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Quick Hits

• In a July 2026 opinion, the Fifth Circuit vacated OSHA’s mental-illness recording rule, and the citation and penalty issued under it, after concluding that the OSH Act did not authorize the rule.
• The court’s analysis appears to have opened the door to challenging the statutory basis underpinning OSHA’s reporting rules.
• OSHA’s reporting rule remains in effect until a court invalidates or OSHA changes it.

While the Fifth Circuit did not address OSHA’s rule requiring reports within eight hours for work-related fatalities and within twenty-four hours for work-related in-patient hospitalizations, amputations, and losses of an eye, the court’s analytical framework (starting with statutory text, requiring explicit congressional authority, and rejecting a merely plausible agency reading) may give employers a roadmap for challenging that incident-reporting regime.

To be clear, this is a developing legal theory, not a holding that 29 C.F.R. § 1904.39 is invalid. Employers must continue to comply with the existing rule. The question is whether the statute the U.S. Congress enacted authorizes immediate, event-triggered reports backed by citations and penalties, or instead authorizes recordkeeping and periodic reports.

That distinction matters most when an incident is chaotic, the cause is disputed, or the employer learns only later that the event may be work-related. The current regulation gives employers a limited amount of time once the relevant facts are known; Exxon and Loper Bright Enterprises v. Raimondo invite a court to examine whether the regulation’s particular deadlines stay within the authority Congress actually delegated.

The potential challenge begins with a simple textual contrast.

The Textual Gap: ‘Periodic Reports’ Versus Immediate Reporting

Section 8(c)(2)—codified at 29 U.S.C. § 657(c)(2)—of the Occupational Safety and Health (OSH) Act directs the secretary of labor, in cooperation with the secretary of health and human services, to prescribe regulations requiring employers to “maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than specified minor injuries.” The provision expressly addresses records and periodic reports; it does not expressly mention immediate notification of OSHA after a discrete event.

Section 1904.39(a) of OSHA’s regulations, by contrast, imposes an event-triggered duty: report a work-related fatality within eight hours, and report an in-patient hospitalization, amputation, or loss of an eye within twenty-four hours. Reports must be made by telephone, in person, or electronically.

• The developing argument is that “periodic reports” suggests recurring submissions at specified intervals, not an immediate report after each qualifying incident.
• The regulatory difference is that § 1904.39 adds a short, incident-specific clock and attaches potential citation and penalty exposure to missing it.
• The statutory question is whether Congress authorized OSHA to require this form of real-time reporting or authorized only recordkeeping and periodic reporting.

The countervailing argument would aver that “periodic” allows the agency to set reporting intervals, that § 657(g)(2) authorizes rules necessary to carry out the OSH Act, and that prompt notice advances the OSH Act’s protective purpose. There is no doubt that this is a “plausible” reading of the statute. However, after Loper Bright, a court must decide which reading is best rather than accept the agency’s reading merely because it is plausible.

The Fifth Circuit’s Decision

Exxon arose from a refinery explosion and fire in Baytown, Texas. After an employee was diagnosed with post-traumatic stress disorder connected to his emergency-response work, OSHA cited the employer for failing to record a work-related mental illness under 29 C.F.R. § 904.5(b)(2)(ix). The employer pursued review after the administrative law judge’s decision became the final Occupational Safety and Health Review Commission (OSHRC) order.

The Fifth Circuit granted the petition, vacated the rule, and set aside the citation and penalty. It concluded that the best reading of § 657(c)(2) treated “illnesses” as physical—rather than mental—work-related ailments. The court looked at statutory context to determine whether Congress intended “injuries” to include both physical and mental injuries. The court noted “injuries” and “illnesses” appear together; the minor-injury carveout refers to first aid, loss of consciousness, restriction of work or motion, and transfer; and the broader § 657(c) recordkeeping framework and § 657(a) inspection authority focus on physical workplace hazards without referencing hazards specific to mental illness exposures.

Why the Decision Matters Beyond Mental-Illness Recording

Exxon applied Loper Bright’s instruction that courts must exercise independent judgment on whether an agency acted within statutory authority. Loper Bright specifically directs courts to use relevant interpretive tools to identify the statute’s best reading, respect genuine delegations of discretion by Congress, and police the outer boundaries of those delegations, ensuring the agencies don’t exceed the authority delegated by Congress. A regulation may be sensible or plausible and still fail if Congress did not authorize it.

Loper Bright did not eliminate OSHA’s policymaking or technical expertise. It eliminated the premise that statutory ambiguity itself transfers interpretive authority to the agency. The agency’s experience may inform a court’s analysis, but it cannot replace the court’s independent judgment about what § 657 permits.

A Potential Challenge to Section 1904.39

Applied to § 1904.39, the argument would track the Fifth Circuit’s decision. Section 657(c)(2) expressly refers to records and “periodic reports.” Section 1904.39(a)(1)–(2) instead requires an employer to initiate a report within eight or twenty-four hours of a qualifying event, while § 1904.39(b)(7)–(8) starts the clock after the employer or its agent learns of the event or learns that it was work-related. A challenger could argue that OSHA crossed the line from periodic reporting into immediate incident notification, a power Congress did not expressly grant.

Employer Considerations

While the Fifth Circuit’s decision changes the conversation, it does not change the compliance rule today. Section 1904.39 is enforceable unless and until OSHA amends it or a court with authority invalidates the relevant requirement. The safer operational approach is to report within the prescribed window while preserving any legal challenge in an appropriate case.

• Quick escalation. When a fatality, in-patient hospitalization, amputation, or loss of an eye may be reportable, employers may want to promptly involve the personnel responsible for OSHA notifications and use one of the permitted reporting methods.
• Tracking knowledge timing. Employers may want to maintain a contemporaneous record of when they or their agent received information about the event and about work-relatedness; that timing can matter under § 1904.39(b)(7)–(8).
• Separating occurrence from work-relatedness. Consider analyzing whether an event or exposure in the work environment caused or contributed to the condition or significantly aggravated a pre-existing condition under § 1904.5(a). The occurrence date does not always start the reporting clock if reportability was learned later.
• Preserving the issue. If OSHA issues a citation, consider contesting it within fifteen working days, developing the factual record, and raising the statutory-authority argument when the facts and procedural posture warrant it.

Bottom Line: A Roadmap, Not a Safe Harbor

The Fifth Circuit’s decision is significant because it demonstrates that an OSHA rule can be vacated when its statutory foundation does not support the agency’s best reading of the law. Loper Bright supplies the review framework, and the text of § 657(c)(2) supplies a potential point of attack against § 1904.39’s immediate deadlines.

But the question remains open. The Fifth Circuit vacated the mental-illness recording rule; it did not decide § 1904.39. Until another court addresses the reporting provisions, employers are still required to comply. Employers may want to preserve the statutory argument where the facts and posture warrant it, and treat work-relatedness and knowledge timing as issues requiring disciplined, contemporaneous analysis.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and provide updates on the State Developments and Workplace Safety and Health blogs as additional information becomes available.

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Quick Hits

• New York Governor Kathy Hochul signed Senate Bill S3460 on September 9, 2026, adding new Section 210-b to the New York Labor Law.
• The law takes effect sixty days after signing, or November 8, 2026.
• Employers must provide employees with a copy of their personnel record, at no cost, within five business days of a written request.
• Employers must notify employees within ten days of placing negative information in a personnel file and permit written rebuttals.
• Violations carry fines of $500 to $2,500, enforced by New York’s attorney general, and the statute includes an express anti-retaliation provision.
• Questions remain as to scope and enforcement, but employers should be aware of the potential for a new retaliation-based cause of action.

Background

On September 9, 2026, Governor Kathy Hochul signed Senate Bill S3460, adding new Section 210-b to the New York Labor Law. The law applies to both private- and public-sector employers and extends access rights to current and former employees alike. According to the governor’s office, New York now joins at least seventeen other states with a personnel-file access requirement.

Governor Hochul signed S3460 at the state’s annual Labor Appreciation Reception at the City University of New York’s (CUNY) School of Labor and Urban Studies, underscoring the labor-friendly legislative environment in Albany ahead of the upcoming gubernatorial election. The law takes effect on the sixtieth day after signing, or November 8, 2026.

What Counts as a ‘Personnel Record’?

The statute defines a “personnel record” broadly as “a record kept by an employer that identifies an employee, to the extent that the record is used, has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action.”

That definition is not limited to a physical or single folder maintained by human resources (HR). The law specifically requires that personnel records include, without limitation, the following written information or documents prepared by the employer:

• the employee’s name, address, and date of birth;
• the employee’s job title and description;
• the employee’s rate of pay and other compensation;
• the employee’s starting date of employment;
• the employee’s job application and resume;
• all performance evaluations of the employee;
• written warnings of substandard performance;
• lists of probationary periods;
• waivers signed by the employee;
• copies of dated termination notices; and
• any other documents relating to disciplinary action.

The definition also extends to records held by third-party vendors who have a contractual agreement with the employer to keep or supply personnel records. The one limitation is that a personnel record does “not include information of a personal nature about a person other than the employee if disclosure would constitute a clearly unwarranted invasion of [that] other person’s privacy.”

Notably, the statute’s use of “without limiting the applicability or generality of the foregoing” suggests that the enumerated list is expansive. Emails, investigation notes, informal disciplinary memos, and records maintained outside a traditional HR file may qualify if they are used or could be used in connection with employment decisions. The precise boundaries of this definition will likely be shaped by future guidance or litigation.

The Five-Business-Day Clock and Limits on Requests

Once the law takes effect, an employer that receives a written request from an employee must provide a complete copy of the employee’s personnel record, at no cost, within five business days. Employers may limit employees to two requests per calendar year, but a request triggered by the placement of negative information in the file does not count toward that cap.

The right to access personnel records extends to former employees as well. The statute defines “employee” as “a person currently employed or formerly employed by an employer.” However, employers are required to retain a complete personnel record (without deletions or expungement) only from the date of hire through three years after separation. Former employees who make a request after that three-year window may find that the employer is no longer obligated to maintain the record, though the statute does not impose a deadline on the former employee’s right to make a request.

For employers with decentralized HR operations, multiple worksites, or a mix of paper and electronic recordkeeping systems, operationalizing a five-business-day turnaround may require significant resources.

Notice of Negative Information and the Right to Respond

Perhaps the most significant and ambiguous aspect of the new law is the notice-and-rebuttal requirement. The statute requires employers to notify an employee within ten days of placing in the employee’s personnel record any information that is, has been used, or may be used to negatively affect the employee’s qualifications for employment, promotion, transfer, additional compensation, or the possibility that the employee will be subject to disciplinary action.

The breadth of this language raises practical questions. A written warning or a performance improvement plan would almost certainly trigger the notice obligation. But what about a mediocre but not overtly negative performance review? Or an email from a manager documenting a performance conversation? The statute does not clearly define what it means to “negatively affect” an employee’s qualifications, and the word “may” suggests the obligation could be interpreted very broadly. These questions are likely to remain unresolved until the Attorney General’s office issues guidance or litigation tests the boundaries.

Once notice is given, the employee has the right to respond. If the employee disagrees with any information in the file, the employer and employee may mutually agree to remove or correct it. If they cannot reach agreement, the employee may submit a written statement explaining the employee’s position, which then becomes a permanent part of the personnel record. That statement must be included whenever the underlying information is transmitted to a third party, so long as the original information is retained in the file.

The law also provides employees with a remedy for false information: if an employer places information in a personnel record that the employer “knew or should have known to be false,” the employee may seek expungement through a collective bargaining agreement, other personnel procedures, or the judicial process.

Enforcement and Penalties

The statute provides that any violation “shall be punished” by a fine of between $500 to $2,500. Enforcement authority rests exclusively with the Office of the New York Attorney General.

Notably, the statute does not appear to create an express private right of action for violations of the access, notice, or response provisions. The enforcement language mirrors the structure of the Massachusetts statute, which similarly channels enforcement through the state’s attorney general rather than through individual lawsuits for statutory violations. That said, the statute does create a separate right of action for employees seeking to expunge false information from their personnel records.

Whether the absence of a broader private right of action will limit the statute’s practical enforcement remains to be seen. Under the Massachusetts model, the limited enforcement mechanism provided for criminal fines enforceable by the attorney general ultimately left a gap that the courts ultimately filled through the common law, as discussed below.

Anti-Retaliation Protections

The statute includes an express anti-retaliation provision that goes beyond its Massachusetts counterpart. Section 210-b(8) provides that no employer “shall discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee who exercises such employee’s rights under this section.”

The statute further defines prohibited retaliation to include, but not be limited to, “threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member.”

This anti-retaliation language is significant for several reasons. First, it establishes an explicit statutory prohibition on retaliation that the Massachusetts statute does not contain (though under Massachusetts law, an employee discharged for submitting a written rebuttal in response to the placement of negative information in his personnel file can state a claim against the employer for wrongful termination in violation of public policy). Second, it sweeps broadly: the phrase “in any other manner discriminate or retaliate” could encompass a wide range of adverse employment actions, from termination and demotion to less obvious forms of retaliation such as schedule changes, reassignments, or exclusion from opportunities. Third, the immigration-specific language reflects the legislature’s awareness of vulnerable worker populations and is consistent with a trend in recent New York employment legislation.

However, the statute does not specify the enforcement mechanism for the anti-retaliation provision. It is not clear whether the “enforced by the attorney general” language in Section 210-b(7) is meant to apply to retaliation claims under Section 210-b(8), or whether the retaliation provision creates an independent basis for an employee to bring a private claim. This ambiguity is likely to generate future litigation.

What Employers Can Do Now

With an effective date of November 8, 2026, employers operating in New York should consider taking the following steps:

• Auditing existing records and storage practices. Determine what is currently maintained in personnel files, where those files reside, and whether they align with the statute’s broad definition of “personnel record.”
• Building a request-response process. Establish a clear intake process for written requests, designate responsibility for compiling records, and create a workflow that can consistently produce a complete copy within the five-business-day window.
• Developing a negative-information protocol. Create procedures for identifying when information that may negatively affect an employee is added to a file, issuing the required ten-day notice, and receiving and filing employee rebuttal statements.

Given the ambiguities in the statute’s enforcement provisions, the potential for additional retaliation claims, and the short compliance windows, employers will want to ensure that their policies, practices, and training programs are aligned with the new law.

Ogletree Deakins’ New York offices will continue to monitor developments and will provide updates on the New York blog as additional information becomes available.

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Quick Hits

• The European Commission issued guidance in August 2026 that clarifies some aspects of the EU Pay Transparency Directive, but leaves many questions unanswered.
• The guidance confirms that the directive applies to public- and private-sector employers, and that pay information does not have to be provided in job advertisements, but must be provided before a job interview.
• The guidance outlines the four key characteristics to determine equal value, and notes that others may be permissible but does not provide examples.

What Does the Guidance Confirm?

The guidance, issued in the form of frequently asked questions (FAQs), confirms that the directive’s scope applies broadly. It states that the directive applies to employers in both public and private sectors including those covered by collective agreements. It also confirms that the directive does not apply to genuinely self-employed workers and that pay information does not have to be provided in job advertisements, rather it must be provided before a job interview. This is of course, subject to implementation of the directive at a national level which may mandate that the information must be in a job posting as has been seen from some member states such as Italy.

The FAQs also address compatibility with the General Data Protection Regulation (GDPR). For example, the directive requires disclosure of average pay levels, but not of an individual’s pay data.

The guidance further states that equal pay compliance represents a “public interest” under GDPR Article 6(3) and member states have the option to put in place additional safeguards in instances where small comparator groups of pay data may reveal an individual’s pay. Article 12(3) of the directive enables member states to only disclose pay information to workers’ representatives, labour inspectorates, or equality bodies who can then inform employees whether pay discrimination has taken place. This is an area that is expected to develop as there are still concerns and criticisms from member states around a perceived incompatibility between the directive and GDPR.

There is clarification around what should be included as “pay.” Payments and benefits in cash or in kind that are available to all workers without any exception or eligibility criteria—such as laptops and/or mobile phones—do not need to be included. Equally, payments or benefits that are optional without any eligibility criteria would also not be included, such as whether a worker can choose to take a gym membership.

Areas That Remain Ambiguous

The FAQs leave areas of implementation of the directive unaddressed or ambiguous. For example, it outlines the four key characteristics to determine equal value—skills, effort, responsibility, and working conditions—and notes that additional factors may be permissible if relevant and gender-neutral yet does not expand on what is acceptable. Furthermore, the guidance does not address the practical implications for employers whose employees are not represented by trade unions.

A reference is made to market conditions as a potential factor that may affect or explain pay differences. The FAQs note that as a factor it should be “treated with caution” as it is less likely to be linked to the actual value of the job itself but does not elaborate further on this point. Although the United Kingdom is outside the scope of the directive, it will be interesting to see if the recent judgment in the case of Next Retail v Thandi & Others is mirrored elsewhere across the EU.

Information and updates on the progress of the directive’s implementation across the European Union can be found using the Ogletree Deakins’ EU Pay Transparency Directive Member State Implementation Tracker.

Ogletree Deakins’ London office, Cross-Border Practice Group, Pay Equity Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Cross-Border, Pay Equity, and Workforce Analytics and Compliance blogs as additional information becomes available.

Daniella McGuigan is a partner in the London office of Ogletree Deakins and co-chair of the firm’s Pay Equity Practice Group.

Mai Barry, a paralegal in Ogletree Deakins’ London office, contributed to this article.

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Quick Hits

• Managers and supervisors who meet the FLSA’s executive duties test generally may not participate in tip pools or tip shares, even when performing tipped work, but may retain tips received solely and directly for services they personally provide.
• Nonprofit exempt employees may volunteer for their employer only if their services are freely performed, there is no expectation of pay, and the work differs from the work they are employed to perform; if these conditions are not met, they can work without additional compensation so long as their primary duty remains the performance of exempt work (and they meet the salary basis requirement).
• Employees who are relieved of duties during a sixty-minute meal period generally have a bona fide unpaid meal period even if they spend several minutes walking to and from a designated break area.

FLSA2026-13: Tips Shared With Managers and Supervisors

A server requested an opinion letter related to sharing tips with an employee whose title is “shift supervisor” and stated that the position primarily performs management duties. The employee asked whether, when the shift supervisor works a bartending shift periodically or assists positions like hosts and bussers, the supervisor can share in tips.

The WHD again reiterated the principles previously laid out in opinion letter FLSA2025-1. Without opining on whether the shift supervisor was actually a manager or supervisor, the WHD explained that a manager or supervisor who meets the executive duties test (job title is not dispositive), regardless of whether the individual meets the salary requirements in 29 C.F.R. § 541.100 and Subpart G, cannot keep employees’ tips or otherwise participate in a tip pool or tip share. This remains true even if the manager or supervisor performs nonmanagerial duties, including in a tipped occupation such as a server or bartender or alongside other employees the individual manages. The only exception to this occurs if a manager or supervisor solely and directly performs services and receives a tip from a customer. Notably, Section 3(m)(2)(B) of the Fair Labor Standards Act (FLSA) does not prohibit an employer from requiring a manager or supervisor who receives tips directly from customers to contribute some portion of those tips to eligible employees in an employer-mandated tip pooling or tip sharing arrangement. 

So, in this case with the shift supervisor, the WHD explained the shift supervisor may keep tips left by his bar customers during the period in which he is bartending since he solely and directly provided services. If, however, the shift supervisor’s tips and other bartenders’ tips are consolidated and split among all bartenders working that shift, it is not possible to attribute the tip solely to the supervisor, and therefore the supervisor is not permitted to take any portion of those tips.

The WHD provided two other examples to explain these principles. In a scenario where a manager helps servers and bussers serve customers, the manager cannot keep any tips. If instead the manager covers a few tables because a server called out sick, she may keep the tips given to her by customers at those tables for services that the manager directly and solely performed. In another scenario where a coffee shop maintains a tip jar and point-of-sale system for customer tipping, a barista, who is regularly left in charge and meets the executive duties test as a supervisor or manager, may not keep any portion of the tips the customers provide because it is not possible to attribute the tips solely to the service the employee provides.

The WHD noted the penalties associated with violation of section 3(m)(2)(B) of the FLSA, which include recovery of the tips the supervisor “kept” as well as an invalidated tip credit for affected tipped employees.

FLSA2026-12: Volunteering for Nonprofit Employer

In FLSA2026-12, a nonprofit organization that breeds, raises, and trains service dogs to assist individuals with visual impairments and veterans with post-traumatic stress disorder inquired whether their exempt employees may volunteer for the organization to provide juvenile canine socialization services at home. The WHD determined this is permissible as long as the employees do so freely and without coercion, with no contemplation of pay for the volunteer services rendered, and the volunteer services are not the same type of services the organization employs the employees to perform. Stated differently, the WHD explained “a nonprofit employee cannot be both a paid employee and a non-paid volunteer while performing the same type of work for the same employer.”

The WHD explained while this is true for both exempt and nonexempt employees, there are different considerations for exempt employees. If the nonexempt employee is performing the same work, that work is not voluntary and would be compensable time. In contrast, if the exempt employee is performing the same or similar work, and still satisfies the duties test, the employer does not owe extra compensation for this work. However, when the volunteer work qualifies as nonexempt work (in this case, the issue was an exempt trainer performing volunteer, juvenile canine socialization work, which the WHD categorized as nonexempt work), the employee’s primary duty must remain the performance of exempt work. In determining whether exempt work is the primary duty of the employee, an employee who spends more than 50 percent of his or her time performing qualifying exempt work will usually satisfy the primary duty test, but it is ultimately a qualitative fact determination.

FLSA2026-11: Meal Periods and Walking Time

A security therapy aide at a detention facility requested an opinion from the WHD regarding whether an uncompensated sixty-minute meal period for which employees spend six to fourteen minutes walking to and from the employer’s designated meal break constitutes a bona fide meal break. The employee also asserted the time traveling to and from the break area should be compensable.

Setting aside any analysis or opinion as to the terms of the collective bargaining agreement (CBA) providing for this sixty-minute meal period, the WHD explained that the remaining forty-six to fifty-four minutes subtracting travel time constitutes a bona fide meal break when there is no indication the employer requires employees to work while eating and employees are relieved from any work responsibilities during that time. Relevant authority is crystal clear that so long as the employee is relieved from duties, even “30 minutes or more is long enough for a bona fide meal period.” But even meal periods of less than thirty minutes can be bona fide and not compensable if employees have sufficient time to eat a regular meal or there is an agreement between employer and employee for a period of less than thirty minutes for a meal period. Most often though, short rest breaks of up to twenty minutes in length are compensable because they “promote the efficiency of the employee.”

With respect to the travel time to and from the break area, the WHD rejects the “complete relief from duty standard.” When employees need just a few minutes of travel time to access a break room or other location where they can eat their meal, that time is generally not compensable.

Ogletree Deakins’ Hospitality Industry Group and Wage and Hour Practice Group will continue to monitor developments and will post updates on the Hospitality and Wage and Hour blogs as additional information becomes available.

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Quick Hits

• Massachusetts’s PROTECT Act, effective August 5, 2026, requires employers that receive an I-9 notice of inspection from DHS/ICE to deliver written notice in each affected employee’s primary language within forty-eight hours of receipt.
• Employers in Massachusetts may want to prepare now by assigning responsibility for the notice process, pre-translating notice templates, mapping individual distribution methods for all employees, and proactively auditing I-9 files.
• Beyond the I-9 notice requirement, the PROTECT Act restricts state and local law enforcement participation in civil immigration enforcement, limits civil arrests on certain state property, and requires many healthcare providers to adopt a written enforcement interaction policy by October 4, 2026.

The New Rule

When an employer receives a notice of inspection (NOI) from the U.S. Department of Homeland Security (DHS)/Immigration and Customs Enforcement (ICE) for I-9 forms or other employment eligibility records, Massachusetts law now requires that employers take the following actions:

• 48-hour deadline: Written notice must be sent to employees within forty-eight hours of receiving the NOI.
• Individual delivery: Each affected employee must receive his or her own notice. A notice posted in a breakroom, on an intranet, or on a bulletin board is not enough.
• Primary-language requirement: Notice must be given in the employee’s primary language, not just English.
• Clock starts at receipt: The forty-eight-hour period begins when the employer first receives the notice of inspection.

A state-issued sample notice is available for use by employers.

Tips for Employers

Employers in Massachusetts may want to consider the following steps to comply with the PROTECT Act:

• Assigning ownership: Consider deciding today who is responsible for triggering the notice process the moment an NOI is received and establishing an actionable process.
• Pre-translating notice templates: Employers that have workforces where multiple languages are spoken may want to have translated versions of the sample notice ready in advance.
• Mapping distribution methods: Employers may want to confirm how they will individually reach every affected employee, including remote staff, employees on leave, and multisite workers.
• Auditing I-9 files proactively: A clean I-9 audit process reduces the risk of substantive violations surfacing during an inspection, separate from the notice obligation itself.

Other Parts of the PROTECT Act Impacting Employers

The I-9 notice rule is the piece most directly tied to day-to-day employer operations, but the law reaches further. Employers with on-site clinics, childcare programs, or other covered facilities should note that the act also:

• restricts the ability of state and local law enforcement to participate in civil immigration enforcement,
• limits civil arrests in certain nonpublic areas of state property, and
• requires many healthcare providers to adopt a written policy addressing civil law enforcement interactions by October 4, 2026.

Bottom Line

• The forty-eight-hour I-9 notice requirement carries real compliance risk and almost no lead time once triggered.
• Employers may want to treat this as an operational readiness issue.
• Employers may want to have the template ready, know who owns the process, and know exactly how notices will reach every affected employee.

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

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