Quick Hits

• When an employee is required to be on duty for more than twenty-four hours, the FLSA allows employers to exclude up to eight hours of sleep time from compensable hours.
• This exclusion applies where: (1) there is an implied or express agreement to the exclusion; (2) the employer provides adequate sleeping facilities; and (3) the employee gets at least five hours of uninterrupted sleep.
• Nonexempt employees who are required to be on duty for fewer than twenty-four hours must be paid for all hours, even those spent sleeping.

The Fair Labor Standards Act and Sleep Time

The FLSA requires employers to pay nonexempt employees for all hours worked, and typically, any time that the employer requires employees to remain on-site counts as hours worked. But the FLSA regulations permit an employer to exclude up to eight hours of sleep time from compensable hours when an employee is required to be on duty for twenty-four hours or more, if the following requirements are met: (1) the employer and employee have an express or implied agreement to exclude the sleep time from hours worked; (2) the employer provides the employee with adequate sleeping facilities; and (3) the employee can usually enjoy an uninterrupted night’s sleep. The U.S. Department of Labor (DOL), in its Field Operations Handbook and Field Assistance Bulletin 2016-01, provides guidance on each of these requirements.

The existence of an agreement can be manifested in writing or orally, or it can be implied by the parties’ conduct. In its Field Operations Handbook, the DOL offers an example of an implied agreement, where the employer has a “usual practice” of excluding sleep time from work shifts of twenty-four hours or more, and the employee, who is regularly required to work such shifts, has never objected to the exclusion. Courts have generally held that an employer’s published policy explaining the sleep time deduction—combined with the employee’s continued employment—satisfies this requirement.

Whether sleeping facilities are adequate is a fact-specific assessment. According to the DOL, this generally requires access to “basic sleeping amenities, such as a bed and linens, reasonable standards of comfort, and basic bathroom and kitchen facilities.” “The designated sleeping area and other facilities can be shared or private.” The DOL notes, however, that context is important, and other types of facilities could meet the requirement in other circumstances.

As for what constitutes an “uninterrupted night’s sleep,” the regulations have defined this as at least five consecutive hours. Notably, if an employee regularly works shifts of twenty-four hours or more, limited interruptions to the five-hour period are permitted so long as they do not occur on more than half of the employee’s scheduled shifts. This rule, however, likely does not apply in the unusual circumstance in which an employee who normally works shifts of fewer than twenty-four hours is required to remain at the workplace for twenty-four hours or more because of an unusual weather event. In the latter case, the five-hour sleep period should truly be uninterrupted; otherwise, the entire period could be considered compensable time.

Employers may deduct only the actual hours spent sleeping, subject to a maximum deduction of eight hours per sleep period. Even when employees sleep for longer periods, no more than eight hours may be excluded from compensation.

Considerations for Employers

During a weather event, such as a snowstorm or hurricane, when travel to and from the workplace may be difficult, if not impossible, employers may require employees to remain at the workplace for extended periods of time to ensure staffing coverage. In anticipation of such situations, employers may wish to consider developing and implementing sleep time policies that specifically exclude up to eight hours of sleep time during shifts of twenty-four hours or more. They should also ensure that there are adequate sleeping facilities and that employees receive at least five uninterrupted hours of sleep.

There may be situations in which an employee chooses—and the employer permits but does not require the employee—to remain at the workplace overnight in order to avoid travel difficulties. Under such circumstances, the employee need only be paid for those hours that the employee is scheduled to work by the employer, and not for those additional hours when the employee is on the premises by his or her own choice, as long as the employee is not performing work during that time.

Notably, state wage and hour laws may impose additional or different requirements regarding sleep time deductions. Some states do not permit employers to exclude sleep time from compensable time and require employers to compensate employees for all time they are required to be on-site, even if they are sleeping. Ideally, a thorough review of applicable state regulations should precede the implementation of any sleep time deduction policy.

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

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Quick Hits

• To avoid a partial government shutdown, a funding package for the departments of Defense, Homeland Security, Transportation, Housing and Urban Development, Health and Human Services, Labor, Education, Treasury, State, and other agencies must pass the U.S. Senate before January 30, 2026.
• A government shutdown of these departments would suspend critical immigration functions, including PERM processing, prevailing wage determinations, and Labor Condition Applications.
• E-Verify would also likely be unavailable, and immigration-related services at U.S. consulates abroad could be reduced or suspended due to limited State Department operations.

The Senate and U.S. House of Representatives have passed six of the twelve required appropriations bills funding agencies, including the U.S. departments of Agriculture, Commerce, Energy, Interior, and Justice. The House passed a funding package on January 22, 2026, that would fund the remaining agencies, including the U.S. departments of Defense, Homeland Security, Health and Human Services, Labor, Education, Transportation, Housing and Urban Development, State, and Treasury. The Senate must now vote on the package to prevent a partial government shutdown of these agencies on January 30, 2026.

A partial government shutdown involving these agencies could delay many immigration matters, but the most significant impacts for U.S. employers would include:

• Certified LCAs: Employers would be unable to obtain certified Labor Condition Applications (LCAs) for H-1B, H-1B1, and E-3 petitions.
• PERM and Prevailing Wages: Processing of PERM labor certifications and prevailing wage determinations could halt.
• Consular Services: Foreign nationals could face delays in obtaining employment-based visas at U.S. embassies and consulates.
• E-Verify: If the E-Verify system is taken offline, employers would be unable to initiate new cases or resolve tentative nonconfirmations for active cases.
• U.S. Citizenship and Immigration Services (USCIS): As a fee-generating agency, USCIS would remain operational and continue to process applications. However, processing delays could arise due to the impact on other government agencies.
• U.S. Customs and Border Protection (CBP): Although the CBP is funded by the U.S. Department of Homeland Security, its inspection and law enforcement functions are considered essential and should continue.

Employers seeking further guidance can also review a detailed analysis of the immigration implications of a government shutdown here.

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

• The New Jersey Division on Civil Rights (DCR) issued new guidance on state antidiscrimination law, warning employers that policies or practices related to language could be forms of unlawful employment discrimination under the Law Against Discrimination (LAD).
• The guidance highlights the DCR’s view that language policies or practices may be discriminatory based on disparate treatment or disparate impact theories and that repeated harassment over a worker’s language or accent could create an unlawful hostile work environment.
• The guidance recognizes that language proficiency requirements can be a “bona fide occupational qualification for particular positions,” but the burden is on the employer to show that the qualification is reasonably necessary to the normal operation of the business or enterprises.

On January 16, 2026, New Jersey Attorney General Matthew J. Platkin and the DCR released a new guidance document, titled “Guidance on Language Discrimination Under New Jersey’s Law Against Discrimination January 2026,” clarifying the division’s interpretation of the LAD as recognizing potential unlawful language-based discrimination. The guidance highlights how employment policies and practices related to language, such as language qualification requirements, may lead to potential unlawful employment discrimination under the LAD due to the “intrinsic relationship” between language and protected characteristics.

“Where there is no articulable reason behind a language-based requirement or prohibition, the close link between language and protected characteristics may lead a court or DCR to conclude that language was used as a proxy to discriminate based on a protected characteristic,” the guidance states.

In announcing the new guidance, the attorney general and the DCR emphasized the need to protect against such discrimination, given New Jersey’s ethnic and racial diversity. According to the announcement, nearly a quarter of New Jersey residents are foreign-born, and nearly one-third of New Jersey households speak a language other than English.

Specifically, the guidance clarifies the DCR’s view that employment decisions or policies tied to a worker’s language could result in unlawful discrimination under disparate treatment or disparate impact legal frameworks, and that allowing employees to be subjected to repeated “bias-based harassment” based on their language or accent could violate the LAD. At the same time, the guidance recognizes that in some circumstances certain language proficiency may be a “bona fide occupational qualification for particular positions.”

Unlawful Language-Based Discrimination

According to the guidance, “language discrimination” occurs “when individuals are mistreated and/or devalued based on their language use” or because of “their lack of English proficiency” or “biases based on a person’s native language, accent, and speech patterns.” This may include refusing to hire applicants who cannot speak English for jobs that do not reasonably require such proficiency. The guidance further recognizes the connection between language and accent, stating that “offensive and discriminatory remarks about a person’s language or accent, if sufficiently severe or pervasive, may constitute actionable discrimination under the LAD.”

Bona Fide Occupational Qualifications

The guidance recognizes that not all language-based restrictions or requirements necessarily violate the LAD. Proficiency in a particular language may be “a bona fide occupational qualification for particular positions,” but the burden of establishing the language proficiency qualification is on the employer to show that it is “reasonably necessary to the normal operation of that particular business or enterprise.” By way of example, the guidance points to an English and Spanish proficiency requirement for a bilingual English-Spanish customer service representative position as a potential qualification that may not violate the LAD.

The new guidance also explicitly does not apply to language accessibility laws, such as a 2024 law that requires the state Executive Branch to provide translations of key documents in the most common non-English languages spoken in New Jersey.

Disparate Treatment

The guidance warned that the DCR may consider neutral workplace policies or practices related to language to be unlawful under the LAD if they disproportionately negatively affect members of a protected class due to “language-related factors that are tied to their protected characteristics.” Because language is so intertwined with protected characteristics, such as national origin, ancestry, nationality, race, religion, or disability, a language proficiency qualification could be considered a “proxy” protected characteristic, the guidance states. For example, a grocery store owner who pays higher wages to employees who speak only English or passes over for promotions those who speak English as a second language or “prefers people it considers to be ‘fully American,’” may be liable for unlawful disparate treatment based on language according to the DCR.  

Disparate Impact

The guidance further recognizes that language restrictions or qualifications meant to be neutral policies could be considered unlawful discrimination. An employer that requires advanced English proficiency or requests that employment agencies refer only job candidates with advanced English proficiency is likely to disproportionately negatively impact job candidates of certain nationalities or other protected characteristics, the guidance states. Such a policy could potentially violate the LAD unless the employer can show the “policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest.”

The guidance comes just weeks after the DCR adopted new comprehensive rules that codify and reinforce disparate impact liability under the LAD as the federal government under the Trump administration has ceased enforcement of federal antidiscrimination based on disparate impact.

Bias-Based Discrimination

The guidance further warns that, in certain circumstances, employers have an obligation to stop “bias-based harassment” relating to a worker’s language if the harassment results in a hostile environment and the employer knows or should have known of the conduct. For example, a “Jewish warehouse worker” who is “repeatedly subject[ed] to derogatory comments” from coworkers for speaking Hebrew could be subject to a hostile environment if it is pervasive and supervisors fail to stop it.

Next Steps

Employers in New Jersey may want to take note of the language discrimination guidance and how it recognizes the connection between language qualifications or restrictions and their impact on protected characteristics, including national origin, ancestry, nationality, race, religion and disability. The guidance warns employers that language proficiency requirements or policies, such as advanced English proficiency requirements, could violate the LAD. Notably, the guidance warns that even neutral language policies or practices could serve as a proxy for protected characteristics and be used as a pretext for discrimination in violation of the LAD.

However, the guidance only expresses the New Jersey DCR’s views on the application of state law. Courts could take different interpretations in certain situations. Moreover, while the guidance references 2016 guidance from the U.S. Equal Employment Opportunity Commission (EEOC) interpreting Title VII of the Civil Rights Act of 1964, analysis of language discrimination under federal law could differ. In particular, the EEOC under the Trump administration has been reconsidering past guidance and taking new positions, including halting enforcement of discrimination claims based on disparate impact and focusing on national origin discrimination and anti-American bias.

Ogletree Deakins’ Morristown office will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, and New Jersey blogs as additional information becomes available.

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Quick Hits

• OFCCP issued an Information Collection Request on January 2, 2026, seeking to revise questions on its complaint and pre-complaint inquiry forms to align with Executive Order 14173.
• OFCCP issued a renewed Information Collection Request on January 7, 2026, seeking to extend existing recordkeeping requirements under VEVRAA.
• On January 20, 2026, an appropriation bill was introduced that proposed to fund OFCCP at $100,976,000 for fiscal year 2026. This appropriation bill passed the House of Representatives on January 22, 2026, and now moves to the Senate for final approval.

The future and focus of OFCCP has been the subject of discussion and speculation by the federal contractor community since Executive Order (E.O.) 14173 was signed in January 2025. In the lead-up to last year’s government shutdown, the House Appropriations Committee proposed to eliminate OFCCP and move oversight obligations to other federal agencies, while the Senate Appropriations Committee proposed to fund OFCCP for fiscal year (FY) 2026.

On January 20, 2026, a consolidated appropriations bill was introduced that seemingly shifted course from the previous House proposal of eliminating the agency. In the January 20 proposal, which passed in the House on January 22, OFCCP’s necessary expenses would be funded for FY 2026 at $100,976,000. While the FY 2026 proposal contains slightly less funding for OFCCP compared to FY 2025, assuming the Senate passes the bill, it appears OFCCP will have ample funding to enforce agency priorities.

This consolidated appropriations bill comes on the heels of other recent proposed regulatory action from OFCCP related to discrimination complaints and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA).

OFCCP Complaints

On January 2, 2026, the U.S. Department of Labor issued an OFCCP-sponsored Information Collection Request (ICR) to the Office of Management and Budget (OMB), seeking “approval to revise questions on its complaint and pre-complaint inquiry forms to align with E.O. 14173.” The supplementary information in support of the ICR explains that applicants and employees of federal contractors and subcontractors remain able to file complaints under VEVRAA and Section 503 of the Rehabilitation Act (Section 503), but that complaints are no longer allowed under E.O. 11246.

OFCCP continues to receive and investigate complaints filed under VEVRAA and Section 503. The proposed revisions to the complaint form—while specifics have not yet been released—appear aimed at making updates to reflect the current state of the agency’s investigations, including making clear that OFCCP continues to investigate complaints of discrimination under VEVRAA and Section 503.

VEVRAA Data Collection and Compliance

On January 7, 2026, OFCCP issued a renewed ICR seeking approval to extend the recordkeeping requirements of VEVRAA such that OFCCP can continue to “carry out its responsibility to enforce VEVRAA.” The threshold for VEVRAA coverage recently increased to a contract of $200,000 or more. OFCCP’s Supporting Statement explains in its justification for the ICR that obligations continue for covered contractors in all respects, specifically calling out

• the inclusion of the equal opportunity clause in contracts;
• mandatory job listings with appropriate state or local employment service delivery systems;
• the development and maintenance of written affirmative action programs (AAP);
• invitations to job applicants to self-identify as protected veterans at the pre-offer and post-offer selection stages so that the agency and contractors can “collect valuable data needed to track the number of protected veterans who apply for open positions and the number who are hired”; and
• the adoption of a hiring benchmark.

OFCCP’s renewed ICR reiterates the importance of VEVRAA’s compliance and AAP obligations. Similar obligations for compliance and AAPs also currently remain in place pursuant to Section 503.

Next Steps

Employers may want to review current and anticipated federal contracts and subcontracts against the updated thresholds and notices to assess coverage, as well as compliance and AAP implications, and verify whether their organizations meet the employee-count and single-contract triggers for Section 503 and VEVRAA. Addressing existing and ongoing requirements under VEVRAA and Section 503, including completing mandated AAPs, is important for ensuring compliance with any legal risk related to E.O. 14173.

Ogletree Deakins’ Government Contracting and Reporting and Workforce Analytics and Compliance Practice Groups will continue to monitor developments and will provide updates on the Government Contracting and Reporting and Workforce Analytics and Compliance blogs as additional information becomes available.

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Quick Hits

• Effective January 21, 2026, the State Department will pause issuance of immigrant visas to applicants from seventy-five designated countries.
• Nonimmigrant visas (e.g., H-1B, L-1, TN, and B-1/B-2) will continue to be processed and are not impacted by this directive.

Scope and Designated Countries

The seventy-five countries impacted by the announcement include:

Afghanistan, Albania, Algeria, Antigua and Barbuda, Armenia, Azerbaijan, Bahamas, Bangladesh, Barbados, Belarus, Belize, Bhutan, Bosnia, Brazil, Burma, Cambodia, Cameroon, Cape Verde, Colombia, Congo, Cuba, Dominica, Egypt, Eritrea, Ethiopia, Fiji, Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Haiti, Iran, Iraq, Ivory Coast, Jamaica, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyzstan, Laos, Lebanon, Liberia, Libya, Macedonia, Moldova, Mongolia, Montenegro, Morocco, Nepal, Nicaragua, Nigeria, Pakistan, Republic of the Congo, Russia, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Thailand, Togo, Tunisia, Uganda, Uruguay, Uzbekistan, and Yemen.

The processing pause will impact the cases that are currently pending on January 21, 2026, and any new cases going forward until it is lifted. Foreign nationals from the designated countries will still be able to submit immigrant visa applications and attend interviews during the State Department’s pause.

Immigrant visas issued prior to the announcement have not been revoked.

Nonimmigrant visas (e.g., H-1B, L-1, TN, and B-1/B-2) will continue to be processed and are not impacted by this directive.

Exceptions

Immigrant visas will continue to be issued to dual nationals who apply using a valid passport from a country not affected by the directive.

Impact

The State Department will continue to schedule immigrant visa interviews for nationals of the affected countries, but no immigrant visas will be issued until the policy review is complete. The government has not provided a timeframe within which the review should be completed.

This announcement is limited to the issuance of immigrant visas abroad. It should not impact employees in the United States applying for permanent residence through the Adjustment of Status process via Form I-485. Form I-485 applications may, however, be subject to an administrative pause pursuant to USCIS’s January 1, 2026 “hold and review” policy, impacting foreign nationals from thirty-nine specified countries.

Ogletree Deakins’ Immigration Practice Group will monitor developments with respect to these and other policy changes and will post updates on the Immigration blog as additional information becomes available.

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Quick Hits

• Ontario’s Working for Workers Seven Act, 2025, which received Royal Assent on November 27, 2025, introduces significant amendments to the Employment Standards Act (ESA), the Occupational Health and Safety Act (OHSA), and the Workplace Safety and Insurance Act (WSIA).
• Key changes to the ESA include new requirements for online job-posting platforms, job-seeking leave entitlements for employees facing mass termination, and provisions for extended temporary layoffs.
• The OHSA now includes a definition for defibrillators, introduces an administrative penalty scheme for noncompliance, and mandates the equivalency of accredited health and safety systems in public infrastructure projects, while the WSIA imposes stricter penalties for false statements, wage recordkeeping failures, and nonpayment of premiums.

Key amendments to each of these pieces of legislation are summarized below.

Employment Standards Act, 2000 (ESA)

Job-Posting Platform Accountability (in force from January 1, 2026)

An online job-posting platform for publicly advertised job postings is required to:

• implement a mechanism or procedure for users to report fraudulent job postings and
• have a written policy with respect to fraudulent job postings and post it in a conspicuous place on the platform. A copy of the policy must be retained for three years after it ceases to be in effect.

This requirement does not apply to an employer that advertises job postings only on its own website.

Job-Seeking Leave (in force from November 27, 2025):

• An employee who receives notice of termination of employment as part of a mass termination under s. 58 of the ESA is entitled to three days of leave without pay to obtain new employment.
• An employee shall provide at least three days of advance notice to the employer before commencing the leave.
• The leave will be deemed to have been taken in entire days even if only part of a day was taken off.
• An employer may request reasonable evidence.
• Even if the job-seeking leave is provided in an employment contract, the employee will be deemed to have taken the leave under s. 58 of the ESA.
• The entitlement does NOT apply if the employee is provided with termination pay instead of notice, specifically where the “working notice” period provided is 25 percent or less of the total statutory notice period required.

Extended Temporary Layoffs (in force from November 27, 2025):

• An employer and an employee may agree to a layoff that is thirty-five or more weeks in any period of fifty-two consecutive weeks but may not agree to a layoff of fifty-two or more weeks in any period of seventy-eight consecutive weeks.
• The agreement should be made in writing and should have (a) the latest date the employer intends to recall the employee, and (b) a statement of the nature of the agreement.
• The agreement may NOT be withdrawn by the employee.
• The agreement shall be approved by the director of employment standards.
• A copy of the agreement must be retained for three years from expiry of the director’s approval.

Occupational Health and Safety Act (OHSA)

Clarification on Defibrillator (in force from November 27, 2025):

• The OHSA defines “defibrillator” as an automated external medical heart monitor capable of detecting abnormal heart rhythms, assessing whether defibrillation is required and providing electrical impulses as medically required.
• Employers in the construction industry, which are subject to the Workplace Safety and Insurance Act, 1997, shall be reimbursed for the cost of the defibrillator by the Workplace Safety and Insurance Board (WSIB) if they meet specified criteria.
• Regulations may be prescribed to govern the reimbursement process.

Administrative Penalties (in force from November 27, 2025):

• The OHSA introducesan administrative penalty scheme, which will allow inspectors to issue notices of penalty for noncompliance, with the amount of the penalty to be paid in accordance with the regulations.
• A person who receives a notice may request a review, and the designated reviewer can confirm, change, or cancel the notice as set out in the regulations.
• If the fine is paid, the person cannot be charged with an offence under the OHSA with respect to the same contravention.
• If the fine is not paid, it is considered debt to the Crown and may be recovered in accordance with the regulations.

Equivalency of Accredited Health and Safety Systems (in force from November 27, 2025):

The OHSA creates the authority to require public infrastructure project owners, constructors, and employers to treat chief prevention officer-accredited occupational health and safety management systems (OHSMS) as equivalent in procurement processes.

Workplace Safety and Insurance Act (WSIA)

False or Misleading Statements (in force from November 27, 2025):

• An employer is prohibited from making false or misleading statements to the Workplace Safety and Insurance Board regarding any claims for benefits.
• Contravention may be subject to an administrative penalty, in addition to any other penalty imposed by a court.

Wage Recordkeeping Penalties (in force from November 27, 2025):

An employer that fails to maintain accurate wage records or produce wage records on request of the Workplace Safety and Insurance Board may be subject to an administrative penalty, in addition to any other penalty imposed by a court.

Penalties for Failure to Pay Premiums (in force from November 27, 2025):

• An employer may be guilty of an offence for a failure to pay premiums to the Workplace Safety and Insurance Board when due.
• If convicted under this section, the court may also make a restitution order for the person to pay the Workplace Safety and Insurance Board any outstanding amounts owed for any period before the conviction.

Increased Fines for two or more convictions (in force from November 27, 2025):

A person convicted of two or more counts of the same offence in the same legal proceeding may be liable for a fine of up to $750,000 for each conviction.

Aggravating Factors for Employers (in force from November 27, 2025):

The following are aggravating factors when determining a penalty for an employer:

• previous conviction under the WSIA,
• conviction of two or more counts of the same offence in the current proceeding, and
• a record of prior noncompliance with the WSIA.

Ogletree Deakins’ Toronto office and Cross-Border Practice Group will continue to monitor developments and will post updates on the Canada, Construction, Cross-Border, Leaves of Absence, Reductions in Force, Wage and Hour, and Workplace Safety and Health blogs as additional information becomes available.

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Quick Hits

• Collective redundancy consultation is required if an employer proposes to dismiss twenty or more employees over a ninety-day period.
• In Micro Focus v. Mildenhall the EAT ruled that previous redundancies do not need to be counted. The test is whether twenty or more redundancies are proposed looking forward.
• The ruling in Micro Focus v. Mildenhall provides a timely reminder of how Employment Tribunals handle redundancy proposals, redundancy pooling, and collective consultation responsibilities. However, this finding may be short-lived as the government intends to consult on making changes to the threshold as part of the new collective redundancy framework under the UK Employment Rights Act 2025.

In Micro Focus Ltd v Mildenhall, the EAT considered when collective redundancy consultation obligations under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) are triggered. Under TULRCA, there is a legal requirement for employers to carry out a collective consultation when proposing redundancies with twenty or more employees at one establishment in a period of ninety days. Employers that fail to comply with the collective consultation obligations will face penalties.

Mr Mildenhall, the employee in this case, was dismissed for redundancy on 29 July 2022 following a wide-scale cost-reduction and consolidation programme. He brought a claim for a protective award for failure to inform and consult under TULRCA. The Employment Tribunal, taking into account the number of redundancies in a rolling ninety-day period, found that the collective consultation duties had been triggered and awarded Mr Mildenhall the maximum ninety days’ gross pay. The employer, Micro Focus, appealed the finding that the duty to carry out collective consultation had been triggered.

By using the “forward and backward” approach established in a previous ruling, the EAT found that the Employment Tribunal was misdirected. That prior approach had been overtaken by a decision of the European Court of Justice (ECJ) in UQ v Marclean Technologies.

The EAT clarified that the collective consultation obligation applies when an employer proposes to make redundant twenty or more employees within the next ninety days, the approach should be prospective rather than retrospective. The assessment concerns what the employer was actually proposing for the future at the relevant moment, rather than looking back at how many dismissals ultimately occurred. However, the EAT also made clear that employers attempting to avoid their obligations will be subject to scrutiny. Tribunals may consider redundancies that appear to have purposely held back or staggered to prevent consultation in their threshold assessments.

Key Takeaways

Employers may wish to maintain well-documented redundancy procedure and intentions records to aid compliance. Clarity on this subject is particularly welcome, and the importance of following the correct protocol is of increasing importance in light of changes to the penalty for failure to consult in a redundancy in the UK, with the protective award rising from ninety days’ pay to 180 days’ pay per affected employee, effective from April 2026.

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

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

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

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Congress Faces Government Funding Deadline While Winter Storm Looms. The November 2025 legislative deal that ended the record-breaking forty-three–day federal government shutdown expires one week from today—January 30, 2026. The good news is that lawmakers are not signaling much of a desire for another shutdown (at least not yet). Since returning to Washington, D.C., for the second session of the 119th Congress, both the U.S. Senate and U.S. House of Representatives have worked to pass annual spending bills, setting the stage for the hopeful completion of the annual funding exercise next week. (The funding package is not expected to address enhanced healthcare insurance premium subsidies, one of the underlying disputes that led to the 2025 shutdown.)

Of course, nothing on Capitol Hill is ever easy. Politics can always derail efforts at the last minute. Further, it will likely be up to the Senate—which is on recess this week—to cast the final votes on the funding measures next week. But returning to Washington, D.C., next week could prove treacherous for many senators in light of potentially significant winter weather that is expected to impact large portions of the country.

Finally, these bills extend funding through the normal federal government fiscal calendar. This means that funding for fiscal year 2027 will need to be approved before October 1, 2026. Though many of us have “government funding fatigue,” legislative work on fiscal year (FY) 2027 will begin sooner than you may think.

FY 2026 Funding Impacts on Labor and Employment Agencies. Potential passage of the funding package will mark the first time that Republicans in the 119th Congress get their hands around the federal government’s purse strings. Indeed, all government funding in 2025 was established by the previous Congress (and administration) and extended through multiple continuing resolutions in 2025.

But even with Republican majorities in the U.S. Congress, cuts to funding levels for labor and employment agencies are not as significant as one might think. To the contrary, the U.S. Department of Labor (DOL) will actually receive an increase of $65 million for a total of $13.7 billion. As far as government dollars go, this is a nominal increase, but an increase nonetheless, especially given the fact that the White House budget had proposed a $4.5 billion cut to the DOL. That said, many subagencies within DOL will receive flat funding or cuts to their funding. Key subagencies will receive the following appropriations:

• Wage and Hour Division: $260 million (FY 2025 enacted, $260 million)
• Occupational Safety and Health Administration (OSHA): $629 million (FY 2025 enacted, $632 million)
• Employee Benefit Security Administration (EBSA): $191 million (FY 2025 enacted, $191 million)
• Office of Federal Contract Compliance Programs (OFCCP): $101 million (FY 2025, $111 million). The White House’s budget, as well as the House Republicans’ underlying bill, eliminated OFCCP entirely. Other DOL subagencies that were targeted for elimination but will now receive funding include the Bureau of International Labor Affairs (ILAB) (funded at $116 million) and the Women’s Bureau ($23 million).

Finally, the legislation appropriates approximately $294 million for the National Labor Relations Board (NLRB), about $5 million less than currently enacted. The Board lost about 10 percent of its workforce in 2025 due to retirement and deferred resignations. The legislation also includes a “legacy rider” (language that has been included in the bill since the Buzz can remember) that prohibits the NLRB from “issu[ing] any new administrative directive or regulation that would provide employees any means of voting through any electronic means in an election to determine a representative for the purposes of collective bargaining.”

EEOC Rescinds 2024 Harassment Guidance. By a vote of 2–1, the U.S. Equal Employment Opportunity Commission (EEOC) rescinded its “Enforcement Guidance on Harassment in the Workplace,” which was finalized in 2024. Republican Commissioner Brittany Bull Panuccio and Chair Andrea Lucas, also a Republican, emphasized that the rescission of the harassment guidance does not diminish employees’ or applicants’ rights under federal law—that workplace harassment is unlawful with or without the guidance. They further emphasized that the Commission continues to bring harassment-based charges against employers and maintained that the guidance is essentially a substantive rule that exceeds the Commission’s authority under Title VII of the Civil Rights Act of 1964. On the other hand, Democratic Commissioner Kalpana Kotagal—who voted against rescinding the guidance—argued that the guidance provides helpful information to employees and employers and urged the Commission to solicit public input and take a more targeted approach to amending the guidance. Nonnie L. Shivers, T. Scott Kelly, and Zachary V. Zagger have the details.

Speaker Johnson Addresses Parliament. This week, Speaker Mike Johnson (R-LA) became the first Speaker of the U.S. House of Representatives to address the UK Parliament. Invited by Sir Lindsay Hoyle, the Speaker of the UK House of Commons, Speaker Johnson’s address celebrated the 250th anniversary of the United States, and focused on the shared bonds between the two countries:

“But again, the surest way that we protect a special relationship long term is by renewing and recommitting to our foundational principles. As Churchill taught us, the strongest alliances are between kindred countries of kindred principles. What has always set us apart from the rest of the world is our commitment to liberty, our pursuit of excellence, our desire to put faith and family at the center of our lives.”

In 1976, Speaker of the House Carl Albert (a Democrat from Oklahoma) was invited as a guest to Speaker’s House, the official residence of the Speaker of the House of Commons, by Speaker of the UK House of Commons George Thomas to celebrate the United States’ bicentennial. Albert did not address Parliament.

Quick Hits

• On January 17, 2026, outgoing New Jersey governor Phil Murphy signed into law a bill that will expand the reach and protections of the NJFLA.
• The new law also appears to greatly expand state law, including new job-protection provisions for employees taking medical leave.
• The new law takes effect on July 17, 2026, six months following its enactment.

Smaller Employers Affected and Newer Employees Eligible

The new law amends the NJFLA to cover small employers and reduce the minimum amount of time an employee must be employed before being eligible for leave.

The NJFLA currently provides twelve weeks of leave every twenty-four months to eligible employees who require time off to care for a seriously ill family member or bond with a new child. To be eligible for NJFLA leave under existing law, an employee must: (1) work for an employer with thirty or more employees; (2) have been employed at least twelve months; and (3) have worked at least 1,000 hours in the twelve months preceding the requested leave start date.

The new legislation changes each of these eligibility requirements. Now, an employee will be eligible for NJFLA leave if the employee: (1) works for an employer with fifteen or more employees; (2) has been employed for at least three months; and (3) has worked at least 250 hours in the preceding three months.

New Medical Leave Job-Protection Provisions

The new law also appears to greatly expand state law to include new job-protection provisions for employees taking medical leave and receiving state Temporary Disability Insurance (TDI) benefits. Currently, the NJFLA (unlike the federal Family and Medical Leave Act (FMLA)) does not provide job-protected leave for an employee’s own serious medical condition. Under the new law, employees receiving state TDI benefits for their own medical condition must be restored to the same job they had before taking leave, or a job that is equivalent in terms of “seniority, status, employment benefits, pay, and other terms and conditions of employment.”

Although this amendment to the TDI law does not describe this as a new “leave” right, the job restoration requirement may effectively create a new job-protected medical leave entitlement. Further, since employees are eligible for up to twenty-six weeks of state TDI benefits, the new law may provide for up to twenty-six weeks of medical leave—a truly remarkable change in the law, providing fourteen more weeks of job protection than is currently available under the FMLA.

Whether the new law in fact creates a new twenty-six–week, job-protected medical leave entitlement, or perhaps simply requires restoration to prior employment when an employee returns from leave under an employer’s existing medical leave policy or takes leave under the FMLA is unclear.

Ability to Choose Order of Earned Sick Leave and Temporary Disability Benefits

Additionally, if an employee is eligible for earned sick leave under New Jersey’s Earned Sick Leave Law and eligible for TDI benefits, the employee may choose “the order in which the different kinds of leave are taken,” but will not receive more than one kind of paid leave at the same time.

What This Means for Employers

The law takes effect on July 17, 2026, six months following its enactment. Given the extraordinary changes the new law appears to implement, we hope state authorities will issue guidance and clarification immediately to address, among other things, whether the law in fact requires up to twenty-six weeks of job-protected medical leave and, if so, how the law interacts with the FMLA. In the meantime, employers will want to review and modify their current policies to be prepared for the law’s enactment.

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

In addition, the Ogletree Deakins Client Portal tracks developments and provides real-time updates on Leaves and New Jersey’s employment laws, including the NJFLA. 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 to inquire about a Client Portal subscription, please reach out to clientportal@ogletree.com.

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Quick Hits

• The EEOC voted 2–1 along party lines to rescind the 2024 anti-harassment guidance that recognized harassment based on sexual orientation and gender identity as unlawful under Title VII.
• The reversal aligns with the Trump administration and EEOC Chair Andrea Lucas’s federal policy shift to define sex as immutable and binary.
• This rescission follows a federal court ruling that the EEOC had overstepped its authority with the original guidance, finding it had unlawfully broadened the interpretation of sex-based discrimination.

The 2024 harassment guidance, which was adopted in a 3–2 vote, broadly updated the EEOC’s interpretations of anti-harassment protections under federal law, but notably, it addressed new positions on harassment based on “race” and “color” and pregnancy and childbirth, as well as sex-based harassment against LGBTQ+ individuals.

The guidance came on the heels of the Supreme Court of the United States’ 2020 decision in Bostock v. Clayton County, Georgia, which held that Title VII of the Civil Rights Act of 1964 prohibits employers from making hiring or termination decisions as to employees or applicants based on their gender identity (including being transgender) or sexual orientation as unlawful sex discrimination under Title VII. However, a federal court in Texas vacated portions of the guidance in May 2025, finding that the EEOC had exceeded its authority.

Despite the court order, EEOC Chair Lucas, who voted against adopting the guidance in 2024, targeted the guidance for formal rescission. Chair Lucas has nevertheless recognized (including in her confirmation hearing testimony) that Bostock remains good law as to hiring, firing, and promotion decisions.

Commissioner Brittany Panuccio, another Trump appointee who was confirmed to the Commission in October 2025, joined Lucas in voting to rescind the guidance. Commissioner Kalpana Kotagal, a Biden appointee, voted against rescission, while criticizing the Commission for rescinding the guidance document in its entirety instead of excising parts with which the majority disagrees.

The vote comes a week after the EEOC voted to change its procedures for voting on agency policies and enforcement changes, granting the chair the authority to deny requests from other commissioners to hold public or private meetings to consider changes.

EEOC’s 2024 Harassment Guidance

The 2024 harassment guidance was the first significant update to the EEOC’s interpretations of the legal standards and employer liability for unlawful harassment under federal law in more than two decades. It outlined the EEOC’s prior decisions and enforcement strategy that discrimination based on sexual orientation and/or gender identity is a form of unlawful sex-based discrimination under Title VII of the Civil Rights Act of 1964.

The guidance had specifically recognized certain conduct as potentially unlawful harassment, such as:

• “outing,” or the deliberate disclosure of an individual’s sexual orientation or gender identity without their permission;
• other harassing conduct toward an individual because “not present in a manner that would stereotypically be associated with that person’s sex”;
• misgendering, meaning the “repeated and intentional” use of a name or pronoun inconsistent with an individual’s “known” gender identity; and
• the denial of access to a bathroom or other sex-segregated facility consistent with an individual’s gender identity.

The guidance also expanded the explanation of potential harassment based on “color” under Title VII, taking the position that color-based harassment could occur between employees of the same race or national origin.

Additionally, the guidance also took the position that harassment based on childbirth, or related medical conditions, “can include issues such as lactation; using or not using contraception; or deciding to have, or not to have, an abortion,” if that harassment “is linked to a targeted individual’s sex.”

In May 2025, the U.S. District Court for the Northern District of Texas ruled that EEOC had exceeded its authority because the guidance “contravenes Title VII’s plain text by expanding the scope of ‘sex’ beyond the biological binary.” The court vacated the portions addressing accommodations for bathrooms, dress, and pronouns. Following that order, the EEOC added a disclaimer to the published guidance and highlighted portions that had been vacated.

Shift in EEOC Enforcement

The rescission of the 2024 guidance comes after then-Acting EEOC Chair Lucas, in January 2025, removed language from several materials from its internal and external websites and other documents to align with President Donald Trump’s inauguration day executive order, EO 14168, titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” That EO directed federal agencies to “enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes.”

At that time, Lucas targeted the 2024 guidance as requiring EEOC approval, calling the guidance “fundamentally flawed.” Lucas also previously issued a statement on the guidance, arguing that protections for sexual orientation or gender identity, including regarding pronouns and bathroom access, unlawfully expand on the Bostock holding, which applies to hiring or termination decisions.

Next Steps

The rescission of the guidance removes employer guidance on potential unlawful harassment and signals a shift in the EEOC’s enforcement. The EEOC’s interpretations in the now rescinded nonbinding guidance may still be helpful for employers to understand the law and potential harassment claims that can be pursued by litigants. While the EEOC’s step with a quorum is not surprising given shifting federal policy and priorities, employers could still face employee claims and liability for unlawful harassment, and the Bostock decision remains binding Supreme Court precedent. Employers may want to remain acutely aware of all applicable law, including applicable state, local, and federal law.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Governmental Affairs, and Workforce Analytics and Compliance blogs as additional information becomes available.

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

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