Quick Hits

• The U.S. Senate confirmed two nominees for the NLRB to new five-year terms.
• The confirmations give the Board a 3–1 Republican majority that will allow it to overturn precedential decisions.
• Despite the new additions, one vacancy on the five-member Board remains.

The Senate confirmed Republican James Macy, a U.S. Department of Labor (DOL) official and former management-side labor attorney, and Democrat David Prouty, who was renominated for a second term. Prouty, who was first nominated by President Joe Biden in 2021, and Macy will serve five-year terms running until August 2031.

The NLRB confirmations came as part of a slate of 74 nominations confirmed en bloc in S. Res. 817 on a 51–47 vote. The confirmations continue President Trump’s reshaping of the NLRB after he removed former Democratic member Gwynne Wilcox in January 2025 and nominated two Republican members, Chairman James Murphy and Scott Mayer, who were confirmed in December 2025.

While the NLRB has been operating with a functioning quorum of three members, including Member Prouty, the addition of Macy gives the Board four members with a three-member Republican majority that will allow it to overturn prior precedential decisions. Long-standing Board tradition requires at least three affirmative votes to reverse extant precedent, a requirement unlikely to be met with a 2–1 political composition of the quorum.

Next Steps

The timing of the new NLRB confirmations is significant in that it avoids a potential “quorum gap,” as the Board was set to lose its three-member quorum with Prouty’s prior term expiring this month. Board Chairman Murphy’s term is also set to expire on December 16, 2027.

Still, the two NLRB member confirmations leave the five-member Board with one vacancy that President Trump may seek to fill. It is not clear at this time who may be nominated to fill that vacancy.

Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Governmental Affairs and Traditional Labor Relations 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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Senate Confirmation Vote Results in Three-Member Republican Bloc at NLRB. Today, the U.S. Senate confirmed a package of seventy-four executive branch nominees. The package includes National Labor Relations Board (NLRB) nominees James Macy and David Prouty, a fact that is significant for two reasons. First, if the Senate left for its five-week August recess before confirming Macy or Prouty, then the Board would have lost its quorum upon the expiration of Prouty’s term at the end of this month. Second, for the first time in this second Trump administration, it presents the Board’s Republican majority with an opportunity to revisit and reverse Biden-era precedent relating to bargaining orders, employer speech, and workplace rules.

State Department Makes Visa Bond Program Permanent. On August 3, 2026, the U.S. Department of State published a final rule establishing a permanent visa bond program. The rule follows on the heels of a twelve-month pilot program, begun in August 2025, which “provided sufficient data to suggest that a visa bond program [was] an effective tool for enforcing compliance among bonded visa holders.” The final rule requires a covered applicant for a business visitor/tourist (B-1/B-2) visa to post a bond of “either $10,000, $15,000, or $20,000, based upon the applicant’s circumstances as determined by the consular officer, unless the bond requirement is waived.” Pursuant to the final rule, bonds will be required from applicants who are “nationals of countries with high overstay rates, deficient information sharing, insufficient identity verification and criminal records, and/or that need improvement in the area of screening and vetting and the security of travel and civil documents.” Sarah Collins and Jessica L. Cross have more on this.

USCIS Issues Update on Benefits Denial Policy. Effective August 5, 2026, U.S. Citizenship and Immigration Services (USCIS) has clarified its policy regarding the evidence applicants must present when applying for immigration benefits. The previous policy encouraged processing officers to seek additional information when an applicant failed to include sufficient evidence in an initial benefit request. According to USCIS, this “prior policy increased processing times, raised costs which [were] transferred to all benefit requestors through filing fees, and encouraged nefarious filing practices such as frivolous and placeholder filings to secure ancillary benefits.” Under the new, clarified policy, USCIS officers may deny incomplete benefit requests without soliciting further information from applicants. Andrew G. Drozdowski, Carolina Izaguirre, and Ashley Laut have additional details.

State Department Proposes Expanded J-1 Termination Criteria. On July 30, 2026, the State Department published a proposed rule—“Exchange Visitor Program–Termination of Program Participation, Extension of Program and Reinstatement to Valid Program Status”—setting forth criteria for the termination of a J-1 exchange visitor’s program participation. The proposed rule would require a program sponsor—and authorize the State Department—to terminate the exchange visitor’s participation in a program when the “exchange visitor falsifies or fails to provide a full and truthful response, information, or documents as part of his or her exchange visitor application or during the ongoing exchange program.” Additionally, the State Department would be given discretionary authority to terminate an exchange visitor’s program when the Department or the U.S. Department of Homeland Security has revoked or canceled an exchange visitor’s visa with immediate effect or when the exchange visitor has engaged in unauthorized employment. The proposal would also eliminate the distinction between minor or technical infractions and substantive violations of the Student and Exchange Visitor Information System’s (SEVIS) recordkeeping rules by requiring program sponsors to correct such errors within 30 days, rather than the current 120-day time frame. Comments on the proposed rule are due by September 28, 2026.

Dems Reintroduce Bill to Prohibit Predispute Arbitration Agreements and Class Action Waivers. Congressional Democrats have reintroduced the “Restoring Justice for Workers Act” (S. 5190/H.R. 9995), a bill that would prohibit the use of predispute arbitration agreements in the workplace and supersede a 2018 decision of the Supreme Court of the United States that affirmed the use of class action waivers to settle workplace disputes. Although the bill is unlikely to gain traction in the remaining months of the 119th Congress (previous versions were unsuccessful in recent Congresses), it raises an issue that Democrats may seek to press should they recapture one or both chambers of Congress in the November 2026 midterm elections.

Senate Democrats Seek to Double the Federal Overtime Premium. On August 5, 2026, five Democratic senators introduced the “Double the Wage for Overtime Act of 2026” (S. 5268), a bill that would amend the Fair Labor Standards Act to increase the overtime premium from one and one-half times the regular rate to two times the regular rate. A House version of the bill (H.R. 9216), introduced on June 9, 2026, currently has twenty-six cosponsors (all Democrats). As with the aforementioned predispute arbitration bill, the Double the Wage for Overtime Act of 2026 could feature prominently in congressional Democrats’ coming legislative agenda.

‘M-I-Z!’ / ‘Z-O-U!’ On August 6, 2026, the U.S. Senate passed by unanimous consent Senate Resolution 833, “Recognizing the 1960 University of Missouri Tigers Football Team for Its Undefeated Regular Season, Orange Bowl Victory, and Claim to the 1960 National Championship.” Normally, these resolutions happen immediately following the celebrated event, so what took so long? It probably has something to do with a controversy surrounding Missouri’s game against the University of Kansas on November 19, 1960. Missouri’s record was 9–0 going into that game, but the Tigers lost to the Jayhawks at home by a score of 23–7. However, weeks after the game, the Big Eight Conference’s faculty committee found that Kansas had violated conference rules when recruiting a halfback (who was retroactively and prospectively ruled ineligible), and the committee ordered Kansas to forfeit its win over Missouri (as well as its victory over Colorado on November 12, 1960). Missouri then went on to defeat Navy, 21–14, in the Orange Bowl to complete an 11–0 season. This week’s resolution doesn’t magically anoint Missouri as college football’s undisputed 1960 national champion, but it does perhaps add a bit to the “Border War” football rivalry, which resumes in just a few weeks when the Missouri Tigers visit the Kansas Jayhawks on September 11, 2026.

The Buzz will be on hiatus next week but will return on August 21, 2026.

Quick Hits

• USCIS may deny benefit requests without issuing an RFE or NOID if required initial evidence is missing or if the submission does not demonstrate eligibility for the requested benefit.
• Partial responses to an RFE or NOID will be treated as a request for a decision on the existing record.
• Officers now have discretion to set RFE response deadlines on a case-by-case basis, rather than automatically according to the full twelve-week maximum period.
• RFE and NOID response timeframes now allow only three additional days for all mailed notices, including international correspondence, reduced from the prior fourteen-day allowance for notices mailed outside the United States.

Effective immediately, USCIS rescinded the prior administration’s 2021 guidance, which directed officers to issue an RFE or NOID before denying a benefit request, even when applications were incomplete or substantially deficient. USCIS determined that this approach contributed to longer processing times, increased costs, and enabled “placeholder” filings through which applicants could secure ancillary benefits such as employment authorization while awaiting a decision on their underlying case.

The updated policy aligns full adjudicatory discretion with a longstanding regulatory framework under which the burden remains on the requestor to establish eligibility at the time of filing. The policy also clarifies the distinction between initial and additional evidence, primary and secondary evidence, and the evidentiary weight afforded to affidavits. Additionally, RFE and NOID response timeframes have been reduced from fourteen additional days for international correspondence under the prior policy to just three additional days for mailed notices, regardless of location. Any response to an RFE or NOID, even if partial, will be treated as a request for a decision on the existing record.

Key Takeaways

According to USCIS, the agency has the authority to deny immigration benefit requests without issuing  an RFE or NOID if the required initial evidence is not included at the time of filing. This policy applies to all petitions that are pending or filed on or after August 5, 2026. Under this updated policy, it will be increasingly important for petitioners to ensure that applications are thorough and well-documented prior to submission. The practical implications of this policy for employment-based petitions will continue to develop as USCIS begins implementation.

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 Baker v. Van Dolder’s Home Team Inc. (2026 ONCA 568), the Ontario Court of Appeal unanimously held that without-cause termination provisions containing the words “at any time” or “at any time and for any reason” are not, by that language alone, inconsistent with the Employment Standards Act, 2000 (ESA) and are therefore enforceable.
• The decision provides an authoritative interpretive framework: termination provisions must be read in context, with a view to the objective intentions of the parties, rather than through a literal, isolated reading that strains to find ambiguity where none exists.
• The court also confirmed that a with-cause provision defining “cause” more broadly than the ESA’s “wilful misconduct” standard is enforceable where it expressly preserves the employee’s minimum ESA entitlements.

The decision offers much-needed clarity for employers and employment counsel seeking to draft enforceable termination provisions that limit obligations to ESA minimums without running afoul of the statute.

The Facts

Frederick Baker commenced employment with Van Dolder’s Home Team Inc. on November 2, 2020, as its controller, head of finance, at an annual salary of $95,000 plus benefits. His employment contract contained a without-cause provision permitting Van Dolder to terminate his employment “at any time, without just cause, upon providing you with only the minimum notice, or payment in lieu of notice and, if applicable, severance pay, required by the Employment Standards Act.” The contract also contained a with-cause provision and a separate “Minimum Standards” clause providing that the ESA would prevail over any inconsistent contractual term.

On March 24, 2023, Van Dolder terminated Mr. Baker’s employment without cause. Mr. Baker was seventy-one years old and entitled to two weeks of statutory notice. He declined a release and commenced a wrongful dismissal action, arguing the termination provisions were inconsistent with the ESA and therefore void.

In a companion case, Song Li commenced employment with Wayfair Canada ULC on January 23, 2023, as a senior product manager at an annual salary of $221,546. His contract permitted termination without cause “at any time and for any reason” while repeatedly affirming that he would receive the minimum statutory entitlements under the ESA. Wayfair terminated Mr. Li’s employment without cause on October 17, 2023.

Conflicting Decisions Below

The two cases produced irreconcilable results at the Ontario Superior Court of Justice.

In Baker v. Van Dolder, the motion judge found the “at any time” language inconsistent with the ESA because it could be read to permit termination at times expressly prohibited by statute—such as upon the conclusion of an employee’s leave (s. 53) or as a reprisal (s. 74). The motion judge also struck down the with-cause provision for failing to explain the ESA’s “wilful misconduct” standard to “regular employees.”

In Li v. Wayfair, a different motion judge found the virtually identical “at any time and for any reason” language enforceable, reasoning that the contract as a whole clearly sought to limit entitlements to ESA minimums.

As the Court of Appeal observed, this was precisely the kind of inconsistency that had plagued the jurisprudence for years, with virtually identical provisions yielding opposite results.

The Court of Appeal’s Interpretive Framework

The Court of Appeal set out an interpretive framework built on established principles.

First, employment contracts must be interpreted differently from ordinary commercial agreements to further employment law principles, most notably the protection of vulnerable employees. Second, determining the meaning of an employment contract remains an exercise in contractual interpretation: the goal is to ascertain the objective intentions of the parties as expressed in the wording of the contract as a whole, understood in light of the relevant surrounding circumstances. Third, courts should avoid a “magic words” approach and should not strain to find ambiguity where none reasonably exists.

Applying this framework, the court held that the words “at any time” simply reflect a mutual intention that a without-cause termination will be valid and legally effective regardless of when it occurs—not that the employer is entitled to ignore express statutory prohibitions. This interpretation is consistent with nearly three decades of jurisprudence, including the Supreme Court of Canada’s foundational judgment in Wallace v. United Grain Growers Ltd.

The court further held that the addition of “for any reason” simply means that the employer is not required to give the employee a reason for the termination—not that the employer could plausibly claim the contract exempted it from statutory prohibitions.

On the with-cause provision in Mr. Baker’s contract, the court found that because it expressly preserved minimum ESA entitlements even where the contractual standard of “just cause” was met, the provision was aligned with the ESA. The motion judge’s requirement that employers explain the difference between contractual cause and statutory wilful misconduct was an error in principle.

The court declined to reconsider Waksdale, since both the without-cause and with-cause provisions in both contracts were found to comply with the ESA.

What This Means for Employers

“At any time” and “for any reason” language is safe—in the right context. The court has definitively confirmed that these common drafting phrases do not, by themselves, render a termination provision inconsistent with the ESA, provided the clause as a whole reflects an intention to comply with statutory minimums. Employers with existing contracts containing this language can take considerable comfort from the decision.

Contextual interpretation prevails over literal, isolated readings. The decision firmly rejects an approach that seizes on individual words or phrases and assigns them a meaning divorced from the contract as a whole. Employers may want to ensure that their contracts contain clear, repeated references to ESA compliance, as these contextual markers are precisely what courts will rely on to uphold enforceability.

Referential incorporation of ESA entitlements remains effective. The court reaffirmed that employers may validly incorporate ESA minimum entitlements by reference, without needing to spell out the precise scope of those entitlements in the contract. This includes with-cause provisions: defining “cause” more broadly than wilful misconduct is not fatal, so long as the provision preserves the employee’s right to ESA minimums when conduct falls short of the statutory standard.

A “Minimum Standards” clause adds a belt to the suspenders. The court relied heavily on the clause in Mr. Baker’s contract providing that the ESA would prevail over any inconsistent contractual term. While not strictly required, such a clause reinforces the interpretive context that the parties intended ESA compliance.

No obligation to explain the law in the contract. The court rejected the motion judge’s suggestion that employers must explain the ESA’s wilful misconduct standard or how it differs from contractual just cause. This removes what would have been an unworkable drafting burden, but employers may still wish to ensure that the contract clearly preserves ESA floor entitlements upon a for-cause termination.

Consistency in the jurisprudence—at last? The court expressly acknowledged the “uncertainty” and “myriad of cases” that have plagued this area. By articulating a clear, principled framework rooted in contextual interpretation and objective intention, the decision should reduce—though perhaps not eliminate—the risk of conflicting outcomes at first instance.

The Bottom Line

Baker v. Van Dolder’s Home Team Inc. is the most significant Ontario appellate decision on termination clause enforceability in years. It resets the interpretive approach away from formalistic, word-by-word scrutiny and back toward the contextual, purposive framework endorsed by the Supreme Court of Canada. For employers and counsel drafting employment contracts, the message is clear: well-constructed termination provisions that express an intention to comply with the ESA—through repeated statutory references, ESA-compliance clauses, and preservation of minimum entitlements—will be enforced according to their terms.

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

Quick Hits

• The 2026 VETS-4212 reporting platform opened on August 1, 2026.
• All 2026 VETS-4212 filings are due by September 30, 2026.
• Federal contractors and subcontractors with a single covered contract of $200,000 or more are required to file VETS-4212 reports.

Who must file VETS-4212 reports?

Federal contractors or subcontractors with a single contract of $200,000 or more for the procurement of personal property or nonpersonal services, regardless of the number of employees, are required to file VETS-4212 reports with the U.S. Department of Labor’s (DOL) Veterans’ Employment and Training Service (VETS).

The increase in the contract threshold of $200,000 from $150,000 is the result of the Federal Acquisition Regulatory Council’s review and adjustment of acquisition-related statutory thresholds applicable to federal procurement. VETS states in its frequently asked questions (FAQ) guidance that the contract or subcontract may be with “any department or agency of the United States” and includes procuring personal property and services such as “utility, construction, transportation, research, insurance, and fund depository.” The FAQs state that this filing requirement applies to banks, financial institutions, or private sector entities insured by the Federal Deposit Insurance Corporation (FDIC) if a single contract meets the dollar threshold. Federal contracts can include “agreements to serve as fund depositories, agreements for federal share and deposit insurance, and agreements to serve as an issuing and paying agent for U.S. savings bonds and savings notes.”

What data must be filed?

The VETS-4212 form posted for the 2026 reports is split into two data sections for the reporting location. On the left side of the form, Column A shows the total number of protected veterans broken down into the ten EEO-1 occupational categories, and Column B shows the total number of employees in each of the ten EEO-1 occupational categories. The right side of the data section shows hiring activity for the report location for the last twelve months, including the total number of protected veteran hires during the previous twelve months in Column C and the total number of hires in Column D. The form does not require that hiring activity be broken down by EEO-1 occupational category. The upper part of the form contains company identification information and information on the location for which the VETS-4212 form is being filed.

Will filers receive notices of the platform opening or notices of failure to file?

No. VETS does not send emails about platform openings, deadlines, filing updates, and overdue filings. The VETS posts information for each filing period on the reporting landing page and leaves it to filers to complete their filings by the deadline.

Covered government contractors and subcontractors may want to consider preparing now so they can complete their required filings by the September 30, 2026, deadline.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group, Government Contracting and Compliance Practice Group, Military Workforce Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will post updates on the Diversity, Equity, and Inclusion Compliance, Government Contracting and Compliance, and Workforce Analytics and Compliance blogs as additional information becomes available.

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Artificial intelligence (AI)–assisted workforce analytics and simpler changes to how reports are generated and reviewed can both help employers continuously monitor that data and correct issues earlier, reducing wage-and-hour exposure in California and beyond.

This article opens a new series, “Beyond the Data,” on turning existing workforce data into a preventive compliance program. It also introduces a simple, five-stage framework that the rest of the series will build on.

Quick Hits

• Most employers already possess the workforce data and systems needed to build a more proactive compliance practice. The barrier is usually how the data gets used, not whether it exists.
• AI is one useful tool for this, but not the only one. Simpler changes, such as who reviews an existing report, how often, and for what information, can be just as valuable.
• Proactively identifying and correcting compliance issues generally puts an employer in a better position than discovering the same issues for the first time in litigation, in California and beyond.
• This series follows one idea from start to finish: compliance moves through five stages, starting with simply collecting data, and continuing through the use of it to catch problems early. Later articles will show where meal periods, rest breaks, and other exposure points each fit in that progression.

You Already Built This

Over the past two decades, employers have invested heavily in digitizing the workplace: electronic time clocks, cloud-based payroll systems, scheduling software, and HRIS platforms. For most, the practical use of that data has remained narrow: process payroll, satisfy basic reporting requirements, and, when litigation arises, reconstruct what happened months or years earlier.

That is starting to change—sometimes through AI tools that make it practical to continuously analyze data already in these systems or to generate new reports from the same dataset, and sometimes simply because someone decides to look at an existing report differently. Either path moves the data toward an early-warning system, and this series will cover both.

The Opportunity: Different Questions, Same Data

Whether an employer uses an off-the-shelf timekeeping and payroll platform, a customized internal system, or some mix of the two, most already generate substantial reporting built mainly to answer transaction-level questions: Who missed a meal period yesterday? Who was owed a premium last pay period? The more useful question is often different: Which supervisors show a rising trend in late or missed meal periods? Which locations carry disproportionate premium exposure once staffing and overtime are accounted for? AI tools, using a technique often called “pattern recognition,” can help answer questions like these at scale, but an employer can also get partway there simply by asking an analyst to review six months of trend data instead of one pay period at a time. The technology accelerates the work, no matter how sophisticated the business is; it isn’t a prerequisite for starting it.

Five Stages, One Direction

Every article in this series points back to the same idea, so it helps to lay it out plainly here.

A compliance program tends to grow through five stages:

• Stage 1 is collecting data: timekeeping, payroll, scheduling, and HRIS records. Almost every employer is already here.
• Stage 2 is basic reporting: dashboards, exception reports, and an audit once per quarter. Many employers are here, too, even if it doesn’t feel like a stage, but rather a finished process.
• Stage 3 is spotting patterns: seeing trends across supervisors, locations, workgroups, or shifts, on an ongoing basis rather than one report at a time.
• Stage 4 is acting on what the pattern shows: a manager changes a schedule, a policy gets corrected, and the correction gets written down.
• Stage 5 is doing this continuously: problems get flagged before they become patterns, and resources go where the risk is developing, not just where it already happened.

Most employers today are at Stage 1 or Stage 2. This series is about what it takes to move to Stage 3 and beyond, using data these employers already have.

Why This Matters

An employer’s demonstration that it proactively investigated, monitored, and acted upon information is becoming a real advantage, not just a legal technicality. Courts and regulators—in California and increasingly elsewhere—are rewarding employers that took reasonable, good-faith steps toward compliance before problems surfaced, rather than employers that first learned of an issue through a lawsuit, California Private Attorneys General Act (PAGA) notice, or agency complaint. Later articles in this series will touch on specific California statutory and case law developments driving that trend, including a reasonable-steps discount now built into California’s PAGA framework.

For now, the broader point holds: proactive, documented monitoring—whether AI-assisted or simply through better internal habits—tends to reduce wage-and-hour exposure, and it is what moves a compliance program from Stage 2 to Stage 3 and beyond. None of this guarantees immunity from a claim, and nothing in this series should be read as legal advice on any particular set of facts. What it does, ideally, is shift an employer’s starting position—from after-the-fact defense to a demonstration of ongoing, good-faith compliance at all times—regardless of whether litigation looms.

A Practical Illustration

Consider a multi-location employer that already exports weekly timecard and attestation data. Today, that export likely gets a quick look before payroll runs. An AI tool could flag locations with a meaningful increase in late or missed meal periods over six months and draft a short summary for review; alternatively, someone could run that comparison manually each month. A regional manager reviewing that summary might trace the pattern to one location’s Sunday closing shift and adjust the schedule.

Six months later, premiums at that location have dropped, and there is a dated record showing when the problem was caught and what was done about it. Either approach, AI-assisted or manual, is a starting point for human review, not a legal conclusion, but both reflect proactive monitoring, and both move a compliance program forward a stage.

Implementation Tips

Consider starting by asking whoever is responsible for meal-period or premium-pay reporting one question: How far back does the report look, and who actually sees it? A report reviewed one pay period at a time likely misses the six-month trend that matters most. Extending that window and clarifying who acts on it costs nothing, and it is often the highest-value change available before any new tool enters the picture.

Looking Ahead

Next in this series: The timekeeping and attestation data already sitting in employer payroll systems can indicate which supervisor’s meal periods are drifting out of compliance—if it’s reviewed as a Stage 3 practice instead of a Stage 2 report.

Employers evaluating new tools, including AI, to complement their existing HRIS, payroll, and timekeeping systems should do so carefully, and in a way that best preserves attorney-client privilege.

Ogletree Deakins’ California Class Action and PAGA Practice Group, Wage and Hour Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the California, Class Action, Employment Law, and Workforce Analytics and Compliance blogs as additional information becomes available.

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Quick Hits

• The DOJ recently published guidance that clarifies legal protections for religious beliefs and practices in the federal workplace, consistent with recent executive orders and decisions from the U.S. Supreme Court.
• The U.S. Constitution, Title VII of the Civil Rights Act of 1964, and the Religious Freedom Restoration Act of 1993 (RFRA) protect religious expression and practices by individuals and organizations.
• The new guidance is directed to federal agencies, but it may give private employers insights into governmental regulators’ enforcement approaches and priorities, and well as potential claims brought by employees and their attorneys.

The U.S. Constitution protects the right to belief and worship, as well as the right to abstain from belief or worship. Additionally, Title VII and the RFRA protect religious expressions and practices by individuals and organizations, including those “employing others,” as the DOJ guidance explains. The guidance outlines a series of principles to guide federal agencies in ensuring compliance with these federal laws. Those principles have implications for private employers, including with regard to workplace conduct and expression, as well as religious accommodations.

Expansive Definition of Protected Religious Exercise

The guidance defines the “free exercise of religion” as encompassing not just belief or worship but “the right to perform or abstain from performing certain physical acts in accordance with one’s beliefs.” This language signals a federal enforcement approach that will view religious exercise claims broadly.

Employers may find employees invoking religious protections and objections for a wider range of conduct beyond worship attendance or Sabbath observance, to potentially include daily behavioral choices, dress, speech, interactions with coworkers, and exemptions from certain job duties.

Religious Speech and Expression in the Workplace

The guidance states that “[w]here speech or expression is part of a person’s religious observance and practice, it falls within the scope of Title VII,” and that “[s]peech or expression outside of the scope of an individual’s employment can almost always be accommodated without undue hardship to a business.” It further notes that speech “within the scope of an individual’s employment, during work hours, or in the workplace may, depending upon the facts and circumstances, be reasonably accommodated.”

The guidance specifically references prior guidelines issued by the Clinton administration as providing “useful examples for private employers,” such as the following: “employees may keep religious materials on their private desks and read them during breaks”; they may “discuss their religious views with other employees, subject to the same limitations as other forms of employee expression,” they may “display religious messages on clothing or wear religious medallions,” and they may “invite others to attend worship services … except to the extent that such speech becomes excessive or harassing.”

For employers, this posture may create significant tensions with traditional antiharassment policies. Employers that discipline employees for proselytizing, displaying religious messages, or expressing religiously motivated views on controversial topics (e.g., views on sexual orientation, gender identity, preferred pronouns, or other protected characteristics) may face objections that such discipline constitutes religious discrimination. Employers may wish to carefully calibrate their harassment and workplace conduct policies to ensure they do not categorically prohibit religious expression without an individualized assessment of whether accommodation would cause undue hardship.

Religious Accommodations

Under Title VII, employers must reasonably accommodate an employee’s religious needs, absent undue hardship. The new guidance incorporates executive orders and Supreme Court of the United States decisions in recent years, including in Groff v. DeJoy, which held that an accommodation poses an “undue hardship” only if it imposes a burden that is “substantial in the overall context of an employer’s business.” Groff emphasizes that “no undue hardship is imposed by temporary costs, voluntary shift swapping, occasional shift swapping, or administrative costs.” It further asserts that coworker animosity to a particular religion, religion in general, or the notion of religious accommodation does not support an undue hardship defense.

The guidance reiterates that a reasonable accommodation should eliminate the conflict between a job requirement and an employee’s religious belief or practice. Thus, “Title VII requires an employer to consider what adjustment or modification to its policies would effectively address the employee’s concern; an ineffective accommodation is insufficient.” Furthermore, employers are required to engage in an interactive process with an employee to identify an accommodation that is reasonable and effective. What should not be part of that process is questioning whether the employee’s religious belief is sincere.

For employers, this means that undue hardship arguments must be supported by specific, demonstrable evidence of substantial cost or disruption to the workplace. Employers may wish to focus on concrete and significant operational burdens, and not assumptions or coworker complaints. Additionally, the reasonable accommodations process must seek an accommodation that works in practice, not just on paper. While an employer is not required to provide the employee’s preferred accommodation, any offered alternative must effectively eliminate the conflict.

Discrimination Based on Disparate Treatment

The guidance reiterates that Title VII’s prohibition on disparate treatment “is implicated any time religious observance or practice is a motivating factor in an employer’s covered decision.” This includes making assumptions about an individual based on the individual’s perceived or suspected religion. The guidance emphasizes that denying accommodations for religious reasons that are provided for secular ones will constitute a legal violation. But even beyond that, the guidance asserts that “the fact that an accommodation may grant the religious employee a preference is not evidence of undue hardship because Title VII ‘gives [religious practices] favored treatment.’”

Employers may wish to train hiring managers that adverse decisions should not be based on assumptions about an applicant’s or employee’s religious practices (e.g., declining to hire someone perceived to wear religious garb because of anticipated scheduling conflicts). In addition, employers may wish to ensure that accommodations, such as scheduling flexibility, that are granted for secular reasons are equally available for religious reasons. But the converse is not necessarily true. It would appear that traditional employer concerns about “special treatment” for religious employees has been effectively neutralized.

Religious Organizations

Section 702 of Title VII provides protections to religious organizations, allowing them to employ only individuals of a particular religion or those “whose beliefs and conduct are consistent with the employer’s religious precepts.” The guidance notes that this protection may extend to for-profit companies that operate with consistent religious mission statements.

Title IX of the Education Amendments of 1972 bars sex discrimination in educational institutions that receive federal funding. However, the guidance explains, educational institutions controlled by religious organizations are “exempt from Title IX’s prohibition on sex discrimination where that prohibition ‘would not be consistent with the religious tenets of such organization[s].’”

Next Steps

Employers may wish to review their dress codes, codes of conduct, attendance policies, antiharassment policies, and protocols for handling religious accommodation requests to determine if any adjustments may be advisable. Employers also may wish to train managers on compliance with federal and state religious discrimination and accommodations laws.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will post updates on the Employment Law, Higher Education, and Leaves of Absence 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.

Fiona W. Ong is a shareholder in Ogletree Deakins’ Baltimore office.

James M. Paul is a shareholder in Ogletree Deakins’ Tampa and St. Louis offices.

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

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Quick Hits

• The Mexican Tax Authority’s tax electronic signature (e.firma) will now be the only digital credential for ALL employer procedures before the Mexican Institute of Social Security (IMSS).
• Employers have until October 14, 2026, to update their credentials.

The agreement (ACDO.AS2.HCT.160726/3.P.DIR) is the result of a transition process intended to digitalize all IMSS processes.

Main Modifications and Procedures

The implementation of this agreement represents that the e.firma will be the only valid certificate for authenticating an employer’s identity for any IMSS procedure and that legal representation of a company must be managed through the IMSS Virtual Desktop using the legal representative’s company’s e.firma to access.

As a consequence of the latest requirements, the IMSS digital certificates will no longer exist as the Employer Electronic Identification Number (Número Patronal de Identificación Electrónica) (NIPE)).

The following are some of the procedures that will be affected by this disposition:

• Affiliation movements (enrollments, cancellations, and salary modifications)
• Risk premium determination
• Payment receipts of social security contributions (SUAs)
• Access to the IMSS’s mailbox

Tips for Ensuring Future Compliance

The same agreement grants employers a ninety-day period, which will elapse on October 14, 2026, to incorporate e.firma to be in compliance and to avoid any fines related to the compliance of other obligations.

Before the ninety-day period elapses, employers may want to ensure that they have taken the following actions:

1. Verify that the e.firma of the company and of the legal representative is active.
2. Link the e.firma to the Employer Registration Number at the IMSS Virtual Desktop.
3. Designate and link the legal representative’s e.firma.

The employer’s representative must have an e.firma that has been duly updated; otherwise, the link cannot be properly executed.

Ogletree Deakins’ Mexico City office will continue to monitor developments and will provide updates on the Cross-Border blog as additional information becomes available.

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

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

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

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• To date, only five countries in the EU have fully implemented the rules outlined in the EU’s pay transparency directive.
• The remaining EU countries are working toward implementing the directive, but have not done so yet, although the deadline for implementation has passed.

The deadline for member states to transpose EU Pay Transparency Directive 2023/970 into national law was June 7, 2026. Greece, Italy, Lithuania, Malta, and Slovakia finalized their national laws on or shortly after the deadline. Poland and Estonia have implemented the requirements related to recruiting only at this stage.

The minimum requirements of the EU directive apply to all public and private employers, regardless of size. It requires employers to:

• provide the starting salary or pay range to a candidate in the job advertisement or state it before the job interview or with enough time to allow a meaningful negotiation regarding pay to take place;
• ensure that job advertisements and job titles are gender neutral and that recruitment processes are executed in a nondiscriminatory manner;
• refrain from asking job candidates about their pay history;
• provide employees, on request, with information on their individual pay level and the average pay levels, broken down by sex, for categories of workers doing the same work or work of equal value; and
• conduct a joint pay assessment (involuntary pay audit) if pay reports reveal a gender pay gap of at least 5 percent that cannot be objectively justified, and it has not been remedied by the employer within a six-month period.

Furthermore, employers with at least one hundred workers are required to publish data on the pay gap between female and male workers in categories of workers that are performing the same work or work of equal value.

The gender pay gap in the EU currently stands at 11.1 percent, according to statistics from the European Parliament. The pay transparency directive mentions several factors contributing to the pay gap, including sex discrimination, gender stereotypes, the overrepresentation of women in low-paid service jobs, the heavy concentration of women in certain industries (sometimes called horizontal segregation), and unequal sharing of family caregiving responsibilities.

The UK government is seeking comments on its own pay transparency proposal.

Next Steps

Implementation of the directive is likely to pick up pace across EU member states in the coming months, and past experience shows that implementation announcements can happen quickly and without advance warning.

Employers with employees in Slovakia, Italy, Lithuania, Malta, Greece, Poland, and Estonia must be compliant with existing legislation regarding the EU pay transparency directive that is in force now. Employers with employees across the EU may want to prioritize an examination of their current job architecture, policies, and practices regarding pay rates, pay transparency, and recruitment processes to identify changes that will be needed in the near future to ensure compliance.

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

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

Daniella McGuigan is a partner in Ogletree Deakins’ London office.

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

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• On July 22, 2026, the California Occupational Safety and Health Standards Board released a revised draft workplace violence prevention regulation that clarifies and narrows employer-provided transportation to only include “employer-provided transportation under the employer’s control.”
• The revised draft regulation no longer includes the previous exception to “Threat of Violence” that provided “The employer is not responsible for texts, electronic messages, or personal social media that are not brought to the attention of the employer or that the employer could not otherwise be reasonably aware of.”
• The new draft states that an employee assistance program would satisfy the requirement to offer or make available individual trauma counseling.

The draft regulation would continue to require a workplace violence prevention plan with:

1. the name or job title of the person responsible for the plan;
2. procedures for active involvement of employees in developing and implementing the plan;
3. coordination of the plan with other employers at their worksites;
4. procedures to respond to reports of workplace violence;
5. compliance procedures;
6. communications methodologies for the plan, including reporting workplace violence and communicating investigation results;
7. procedures for responding to emergencies;
8. training procedures;
9. procedures for identifying and evaluating workplace violence hazards;
10. methodology for correcting workplace violence hazards;
11. post-incident response procedures and investigation actions; and
12. procedures for review and evaluation of the workplace violence prevention plan.

The draft regulation clarifies and narrows employer-provided transportation to only include “employer-provided transportation under the employer’s control.”

The draft regulation clarifies the “work practice controls” example related to staffing levels. Now, appropriate staffing levels would be “based on the employer’s workplace violence hazard assessment” required under the employer’s plan.

The Standards Board added feasibility language to the section on engineering and work practice controls.

The Standards Board also removed the reference to stalking as a workplace violence hazard. According to the materials, stalking will be listed in a future California Occupational Safety and Health Administration (Cal/OSHA) guidance document along with other examples of workplace violence.

The section that would require employers to offer or make available individual trauma counseling remains despite many employer concerns. The new draft states that an employee assistance program would satisfy the requirement to offer counseling.

The Standards Board will accept comments through August 17, 2026, and then provide a final version for the notice and subsequent vote. A vote approving the final draft standard is expected for the fall or winter with an implementation date of January 1, 2027.

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