Quick Hits

• The Third Circuit explained that challenges to diversity efforts must prove both a discriminatory purpose and impact to trigger strict scrutiny and found sufficient evidence that the district’s policy aimed to alter the racial makeup of its selective high schools.
• The court emphasized that it is unconstitutional for schools to seek specific racial percentages or racial balancing, and that even race-neutral criteria like zip codes can be scrutinized if motivated by racial equity goals.
• The decision deepens a circuit split on impact analysis, potentially inviting Supreme Court review.

In deciding which students would attend the district’s selective high schools, the district considered a variety of factors, including grades, attendance, and zip code. Students in certain zip codes (which were historically underrepresented in the selective high school population) who met other requirements were automatically admitted to the school of their choice. Qualifying students in other zip codes were placed in a lottery for the remaining seats not taken by those in the favored zip codes.

Relying on the 2023 decision of the Supreme Court of the United States in Students for Fair Admissions v. Harvard College (SFFA decision), the court explained that evenhandedly-applied, facially-neutral policies may be unconstitutional when both discriminatory purpose and impact are present. The Third Circuit held that challengers must prove both elements to trigger strict scrutiny.

The court’s proxy analysis turned on three factors: (1) the demographic composition of the preferred zip codes; (2) the determinative nature of the benefit, such as an automatic admission versus a marginal preference; and (3) the connection between the mechanism and the stated racial-proportionality goals. The court reaffirmed that facial neutrality does not protect a classification that functions as a proxy for race.

The decision deepens an existing circuit split on how to measure discriminatory impact. The First Circuit and Fourth Circuit have adopted more restrictive impact frameworks, requiring “success rate” comparisons or holding that a group’s continued “over-representation” negates impact. The Second Circuit, by contrast, recognized that individualized harm can satisfy the impact inquiry. The Third Circuit expressly aligned with the Second Circuit’s approach, holding that discriminatory impact may be established through “before and after” comparisons of admissions data and individualized harm. The court rejected the view that a group’s continued “over-representation” automatically negates a finding of impact. This split may invite Supreme Court review.

Evaluating the evidence in the light most favorable to the parents who challenged the policy, the court identified several categories of evidence supporting an inference of discriminatory intent, including:

• Public statements by district administrators promising to evaluate all policies “through the lens of racial equity” and describing the admissions policy as a “result of” the equity lens review.
• Published goals to “grow” the percentage of qualified African-American and Hispanic students toward being proportional to the population of the district as a whole.
• Evidence that the admissions policy was rolled out on the eve of the application deadlines with little opportunity for comment or input.

For these reasons, the court concluded that the district court’s grant of summary judgment was improper because it was possible for a factfinder to conclude that the district was motivated at least in part by race when choosing to rely on zip codes “to alter the racial makeup” of the district’s four most selective high schools. Judge Hardiman wrote, “Altering the schools’ racial makeup would increase the representation of Black and Hispanic students while decreasing white and Asian students’ representation in a zero-sum admissions game.” Drawing on SFFA, the court treated competitive admissions as an environment in which racial trade-offs that benefit one group necessarily negatively impact another group, making impact easier to establish in selective admissions contexts where spots are limited.

Citing the SFFA decision, the court reasoned that “it is ‘patently unconstitutional’ for a public school to seek ‘some specified percentage of a particular group merely because of its race or ethnic origin.’” Similarly, the court noted that “racial balancing … that ‘approximates the district’s overall demographics’ is an illegitimate objective.”

Importantly, the decision does not hold the admissions policy unconstitutional. Rather, the Third Circuit vacated summary judgment and remanded for further factfinding.

Key Takeaways

The Third Circuit has interpreted SFFA v. Harvard as holding that it is unlawful to try to alter a school’s racial makeup in a “zero-sum game” and also unlawful to seek to achieve a specified percentage of participants of a particular race.

Challenges to diversity efforts are likely to look to the purpose of such efforts, even if the efforts rely on race-neutral criteria, such as zip codes.

Challenges to diversity efforts will be subject to strict scrutiny if challengers can show that racial equity motivated the decision and that there was a racial impact.

Going forward, when admissions programs are challenged in the Third Circuit, educational institutions should expect that facially-neutral diversity efforts, such as relying on geography, socio-economic factors, or other proxies, will be scrutinized for racial intent. Courts will look beyond the text of a policy to examine the purpose behind it, and if challengers can show both discriminatory purpose and impact, the policy will be subject to strict scrutiny. Organizations that operate in multiple jurisdictions may want to consider working with counsel to understand which impact framework governs their potential exposure, given the existing circuit split.

Institutions may want to consider whether favorable aggregate statistics will insulate them from liability. Evidence that a particular group remains over-represented may not be sufficient to defeat an impact claim at summary judgment, and challengers will likely rely on before-and-after comparisons and individualized harm theories. Institutions may wish to avoid publishing numeric racial targets, to exercise caution in framing policies as responses to racial demographics, and to consider whether internal communications reflect lawful objectives.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group, Higher Education Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and provide updates on the Diversity, Equity, and Inclusion Compliance, Higher Education, State Developments, and Workforce Analytics and Compliance blogs as additional information becomes available.

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Quick Hits

• The rate of workplace violence against healthcare workers has increased sharply in recent years.
• Under federal law and some state laws, employers are obligated to maintain a workplace that is free from foreseeable hazards, including workplace violence.
• Certain administrative and environmental solutions may lower the risk of violence in healthcare settings.

Doctors, nurses, psychiatric aides, and home health aides may suffer assaults or other violence from patients, patients’ family members, or visitors. Incidents of workplace violence increased by 30 percent across all healthcare facility types from 2011 to 2022, according to research from the National Institutes of Health (NIH). Rates of workplace violence tend to be higher in emergency departments, psychiatric facilities, substance abuse facilities, and home healthcare settings, compared to other healthcare workplaces, the study found.

Certain factors can heighten the risk of workplace violence, including exchanging money with the public, working with volatile people, working late at night, and working in locations with high crime rates, according to the U.S. Occupational Safety and Health Administration (OSHA). Those factors are present at many healthcare facilities.

Along with immediate physical harm, workplace violence also leads to psychological distress, decreased job satisfaction, and higher turnover rates for healthcare workers, the NIH research found.

OSHA Rule and State Laws

The general duty clause of the Occupational Health and Safety (OSH) Act of 1970 requires employers provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

OSHA convened a Small Business Advocacy Review panel in March 2023 to consider a potential standard for prevention of workplace violence in healthcare and social assistance settings. The panel issued a report on May 1, 2023. However, in 2025, OSHA listed the date for a notice of proposed rulemaking as “to be determined,” meaning it is a long-term action item and not likely to be finalized in 2026.

In 2015, OSHA released updated guidelines for preventing workplace violence in healthcare settings.

Notably, New York State recently enacted a new law that will require hospitals and nursing homes in the state to establish workplace violence prevention programs and require hospitals to conduct annual workplace safety and security assessments, beginning in 2027. California, Connecticut, Illinois, Maine, Maryland, Minnesota, New Jersey, Oregon, Texas, and Washington have similar state laws.

Preventive Measures

To reduce workplace violence, employers in the healthcare industry can rely on strategies like reporting workplace violence incidents, collecting data to identify trends over time, conducting risk assessments, implementing post-incident response protocols, training staff on violence prevention, and maintaining a culture of workplace safety. Effective communication among healthcare staff may help them take additional safety measures when dealing with a patient with a known history of violence or aggression.

The OSH Act prohibits employers from retaliating against workers for reporting injuries or submitting safety complaints to OSHA.

Security measures like having security guards, cameras, adequate lighting, panic buttons, clear exit routes, bulletproof glass, and metal detectors to identify weapons may help healthcare facilities to prevent or mitigate workplace violence. Securing furniture and other items so they cannot be used as weapons may be helpful in some facilities. Making wait times shorter and waiting rooms more comfortable may alleviate the stress of patients and their family members, according to the OSHA guidelines. Typically, healthcare facilities must balance any security measures with the need to be open and accessible to patients and their family members.

Ogletree Deakins’ Healthcare Industry Group, Workplace Safety and Health Practice Group, and Workplace Violence Prevention Practice Group will continue to monitor developments and will provide updates on the Healthcare, Workplace Safety and Health, and Workplace Violence Prevention blogs as new information becomes available.

In addition, the Ogletree Deakins Client Portal also covers developments in Workplace Violence Prevention, including healthcare-specific requirements. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

Cynthia A. Bremer is a shareholder in Ogletree Deakins’ Minneapolis office.

Karen F. Tynan is a shareholder in Ogletree Deakins’ Sacramento office.

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

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Quick Hits

• As in prior years, DHS and DOL have authorized 64,716 supplemental H-2B visas for FY 2026.
• Supplemental visas are divided into three allocations with different start dates and filing windows.
• Employers must attest to irreparable harm and retain supporting documentation.

Background on the H-2B Program

The H-2B program enables employers to hire foreign workers to fill temporary nonagricultural positions when qualified U.S. workers are not available.

The Immigration and Nationality Act (INA) sets the annual statutory cap for H-2B visas at 66,000, distributed semi-annually with up to 33,000 visas available in each half of the fiscal year. However, demand for H-2B workers has consistently exceeded this cap. During the January 2026 filing period, the DOL’s Office of Foreign Labor Certification published the assignment groups for 10,062 applications requesting more than 162,000 positions—a significant increase from the prior year’s 8,759 applications requesting nearly 150,000 positions.

In recognition of this ongoing demand, the U.S. Congress has authorized supplemental visas in recent fiscal years. For FY 2026, section 101 of the Continuing Appropriations Act (Public Law 119-37) permits the secretary of DHS to provide up to 64,716 supplemental H-2B visas for employers whose employment needs cannot be met under the statutory cap.

Supplemental Visa Allocations and Timeline

The 64,716 supplemental visas are divided into three allocations based on employment start dates:

• First Allocation (18,490 visas): For start dates between January 1 and March 31, 2026. This allocation is limited to returning workers who were issued H-2B visas or held H-2B status from FY 2023-2025. Petitions must be filed within fourteen days after the second-half statutory cap is reached.
• Second Allocation (27,736 visas, plus any unused visas from the first allocation): For start dates between April 1 and April 30, 2026. This allocation is limited to returning workers who were issued H-2B visas or held H-2B status from FY 2023-2025. Petitions must be filed between fifteen and forty-five days after the second-half cap is reached.
• Third Allocation (18,490 visas, plus any unused from the first and second allocations): For start dates between May 1 and September 30, 2026. No returning worker requirement. Petitions must be filed between forty-five days after the second-half cap is reached and September 15, 2026. 

Irreparable Harm Attestation Required

To access supplemental visas, employers must submit an attestation under penalty of perjury affirming that their business is suffering—or will suffer—irreparable harm without the requested H-2B workers. The DOL defines “irreparable harm” as “permanent and severe financial loss.” Employers can justify irreparable harm based on evidence such as contracts, work orders, payroll records, or other types of evidence. Employers must also prepare a detailed written statement to provide upon request from DHS and/or DOL.

Next Steps

Given the strict filing windows and the speed at which supplemental visas have been exhausted in prior years, early preparation is essential for employers seeking access to these additional H-2B visas. Additionally, documentation of irreparable harm will be critical to withstanding potential government scrutiny.

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

• Employers may need to provide religious accommodations to Muslim workers during the month of Ramadan.
• Ramadan is expected to begin on February 18, 2026 (following confirmation of the crescent moon on February 17).
• Ramadan is predicted to end on March 19, 2026 (again, depending on the lunar cycle).
• Eid al-Fitr marks the end of Ramadan with a festival.

Observant Muslims do not eat or drink water in the daylight hours during Ramadan. In some cases, Muslims who are ill, pregnant, or breastfeeding may be exempted from the obligation to fast during the day. It is common practice to eat a meal just before dawn (about ninety minutes before sunrise) and right at sunset during Ramadan. Along with the five daily prayer sessions typically required throughout the year, two additional prayers are recommended during Ramadan, an evening prayer (called “Taraweeh”) and a late night, early morning prayer (called “Qiyam”).

Employers can consider flexible work hours and/or telework to accommodate Muslim employees’ religious fasting needs. The exact timing of the daily fast—from dawn until sunset—varies slightly from day-to-day, and will also vary based on geographic location, so employers may want to speak with observant employees to determine their exact timings for the fast. This year, daylight savings also falls during Ramadan, which will also shift the timings for the fast based on the employee’s specific time zone.

Employers may also want to consider providing quiet, private spaces where observant employees can pray, break their fast, and also wash for prayer, called wudu, which is a mandatory ablution performed before prayer. Some employees may also request time off to celebrate Eid-al-Fitr, the holiday that celebrates the end of Ramadan.

Employees in physically demanding jobs may need certain accommodations, such as rest breaks, while they are fasting, depending on their medical conditions, age, and other factors. And, importantly, as is the situation with most religious beliefs, practices, and membership, not all Muslim employees have the exact same accommodation needs or desires. Practicing a religious faith often involves personal and varying nuances and beliefs that differ among individuals. Having a conversation with each employee who has requested an accommodation is helpful to understand their specific situation and request, and such tailored discussions meet the legal requirement for employers to engage in an “interactive process” regarding any religious accommodation requests.

Legal Obligations

Employers are familiar with Title VII of the Civil Rights Act of 1964’s prohibition against harassing or discriminating against workers based on their religion. But Title VII further requires employers to affirmatively make reasonable accommodations when an employee’s religious beliefs conflict with a work requirement or when the requested assistance better allows the employee to perform his or her job functions. The accommodation requirement can be avoided only if the employee’s request would impose an undue burden on the employer. The undue burden defense must be demonstrated by actual evidence and is a high bar for an employer to meet. In 2023, the Supreme Court of the United States confirmed and held that employers must prove substantial increased costs in relation to the conduct of their businesses in order to qualify for the undue hardship defense. Such burdens can be either financial or nonmonetary (or both) in nature, including significant disruptions to operations, efficiency, scheduling, or safety, so long as those impacts are shown to translate into real burdens on the business rather than mere coworker dislike or bias.

In addition to the federal law, many states have laws that similarly prohibit religious discrimination in the workplace and require reasonable accommodations.

Next Steps

Employers can consider ways to recognize Ramadan and provide education about it in their internal newsletters or social events. Keep in mind, however, that not all Muslims observe Ramadan—or otherwise practice their religion—in the same way.

To avoid violations of state and federal laws, employers may wish to review their written policies, practices, and employee training to prevent harassment and discrimination based on religion.

Employers must provide accommodations for employees’ religious beliefs and practices, unless the accommodation would cause a substantial burden on business operations.

The Ogletree Deakins Client Portal includes state and federal law summaries for Religious Accommodation and Protected Characteristics. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

Ogletree Deakins’ Employment Law Practice Group and Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Employment Law and Leaves of Absence blogs as new information becomes available.

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Quick Hits

• The FTC negotiated a ten-year consent order with an employer to end the employer’s enforcement of blanket noncompete agreements against nearly 1,800 employees.
• The consent order mandates that the employer notify employees and former employees that the company’s noncompete agreements are no longer effective, cease enforcement of those agreements, and provide ongoing compliance reporting to the FTC for a decade.
• The consent order comes after the Trump administration stopped defending the rule adopted by the FTC during the Biden administration in the FTC’s effort to ban nearly all noncompete agreements in employment.
• The action marks a shift by the FTC under the Trump administration toward a case-by-case approach to analyze and attack unreasonable noncompete agreements the FTC views as harming competition in the labor market.

On November 25, 2025, the FTC issued a consent order involving pet cremation business Gateway Services, Inc., and its subsidiary, Gateway US Holdings, Inc. The consent order settles potential FTC charges that Gateway’s use of blanket noncompete agreements “constitutes an unfair method of competition with a tendency or likelihood to harm competition” in violation of Section 5 of the Federal Trade Commission Act.

According to the allegations set forth in the FTC’s complaint, Gateway used noncompete agreements that prohibited employees from “working in the pet cremation service industry anywhere in the United States” and that applied to nearly all Gateway employees outside of California (totaling more than 1,780 employees, including “highly compensated executives and hourly workers”) “without any individualized consideration of an employee’s role.”

The consent order, in which Gateway makes no admission of violations, requires it to cease enforcing such noncompete agreements, notify current and former employees that the agreements are no longer in effect, and maintain ongoing compliance for a period of ten years.

Covered Noncompete Agreements

The consent order broadly applies to “Covered Non-Compete Agreement[s],” referring to any noncompete agreement that “restricts or restrains the right or ability of [covered employees] to seek or accept employment with any Person, to operate a business, or otherwise to compete with [Gateway] for any period of time after the conclusion” of their employment. In an important distinction—reinforcing the further departure from one-size-fits-all prohibitions in the prior FTC rule—the order expressly excludes noncompete agreements with directors, officers, or senior employees who receive equity or equity-based interests in the company, as well as certain noncompete agreements reached as part of the sale of a business. The order also does not prohibit certain non-solicitation agreements, or covenants limited to the protection of confidential business information and trade secrets.

Cease Noncompete Enforcement, Other Compliance Obligations

Under the consent order, Gateway must:

• cease and desist from entering into or enforcing covered noncompete agreements with employees;
• cease and desist from communicating to prospective or current employers of covered employees that they are subject to a noncompete agreement; and
• not prohibit employees from “soliciting current or prospective customers” except those with which employees “had direct contact or personally provided service” in the prior twelve months.

Gateway agreed to provide, within forty-five days of the date of the order’s issuance, written notice to employees and former employees who were employed for one year or less. Within thirty days of the order and for its duration, Gateway must provide a detailed notice (electronic or otherwise) to each new covered employee, using specific language agreed to in the order, that the employee’s position is not and will not be subject to a noncompete agreement.

The order requires Gateway to “immediately cease enforcing all existing [covered noncompete agreements] in the United States.” Gateway was required to furnish copies of the order and complaint to its existing directors, officers, human resources officers, and hiring managers, and thereafter furnish copies to any new directors, officers, human resources officers, and hiring managers for a period of ten years from the date of the order’s issuance. The order also requires Gateway to submit compliance reports, including annual reports for the next nine years, providing the FTC with “sufficient information and documentation to enable the [FTC] to determine” compliance with the order. Finally, upon written request with five days’ notice, the FTC is generally permitted to access Gateway facilities, inspect its books and records, and interview directors, officers, and employees, for the purpose of determining or securing compliance with the order.

Noncompete Agreements Under Scrutiny

The Gateway enforcement action followed the FTC’s 3–1 vote on September 5, 2025, to dismiss its (stayed) appeals of federal court decisions in Florida and Texas that had struck down the Biden-era FTC rule banning nearly all noncompete agreements in employment. The FTC’s move to dismiss its appeals and accede to the vacatur of its rule put an end to the final rule adopted in April 2024 by a five-member FTC in a 3–2 vote, in which the two Republican members dissented.

The defeat of the ban was a welcome sign for employers that widely use noncompete agreements and other restrictive covenants to protect their legitimate business interests. While the FTC has shifted away from broad rulemaking to regulate noncompete agreements, it remains interested in scrutinizing them. The new approach seems to be to attack them on a case-by-case basis where the FTC believes there is overbreadth and leave in place narrowly tailored or less restrictive covenants. In February 2025, the FTC, under the leadership of recently elevated Chairman Andrew N. Ferguson, launched a “Joint Labor Task Force” to enforce federal antitrust laws and protect competition in labor markets, including by targeting unreasonable noncompete agreements and other restrictive covenants.

Next Steps

For now, the Gateway consent order highlights the types of blanket noncompete agreements the FTC is likely to pursue. Employers should take this as an opportunity to review their noncompete agreements to ensure they are narrowly tailored, including a reasonable time and scope, and that their organizations limit the use of noncompete agreements to those employees whose exposure to company confidential information and trade secrets warrants the use of noncompete clauses. Employers should, where possible, consider using differentiated agreements that are not as strict as noncompetes to protect their legitimate business interests, including through non-solicitation agreements and agreements solely to protect confidential business information and trade secrets.

Ogletree Deakins’ Unfair Competition and Trade Secrets Practice Group will continue to monitor developments and will provide updates on the Unfair Competition and Trade Secrets blog as additional information becomes available.

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

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Quick Hits

• A proposed class action alleges that a widely-used AI-powered tool violates the federal FCRA and California’s ICRAA by compiling sensitive, individualized personal information on job applicants without their consent. 
• The complaint contends that by evaluating applicants based on extensive data sources—such as LinkedIn profiles, publications, and job application history—the tool generates consumer reports subject to the disclosure, authorization, notification, and certification requirements of both statutes.
• The lawsuit could be the first of a new wave of class action litigation targeting AI-powered employment tools and similar automated decision-making technology.

On January 20, 2026, a pair of job applicants filed a proposed class action lawsuit against Eightfold AI Inc. in a California state court. The complaint alleges that the company unlawfully compiles sensitive personal information on job applicants—including social media profiles, (e.g., LinkedIn), location data, internet and device tracking data, and data from online cookies—to build profiles about applicants and assess their “likelihood of success” for the job without their knowledge.

The lawsuit seeks to bring nationwide and California class claims under the FCRA, a federal law that regulates how employers collect and use third-party background check information and ensures accuracy, fairness, and privacy in hiring, as well as the similar California ICRAA.

Eightfold is one of a growing list of companies developing software and tools powered by AI and similar automated decision-making technology to aid in employment decisions, such as job applicant screening tools, which employers are increasingly using to improve efficiency. A recent LinkedIn study found that 93 percent of recruiters say they plan to increase their use of AI in 2026, and 59 percent say it is already helping them discover candidates with skills they would not have found before. Two-thirds of recruiters (66 percent) plan to increase their use of AI for pre-screening interviews in 2026, according to the survey.

The lawsuit raises significant new questions about these tools and the large volume of sensitive information collected about job applicants and employees from outside sources and other employers, sometimes without their knowledge or consent, beyond what is provided during the hiring process.

Consumer Reporting Agency Allegations

According to the complaint, Eightfold generates reports on applicants using “AI-powered tools that assemble and evaluate information on prospective employees” and assess their “suitability” for a job based on factors such as “work history, projected future career trajectory, culture fit, and other personal characteristics.” The company then allegedly “sells these reports to employers for use in making employment decisions.”

To generate these reports, the complaint alleges, information is fed into the company’s Large Language Model (LLM), which incorporates over 1.5 billion data points from job titles, skills, and “the profiles of more than 1 billion people working in every job, profession, [and] industry.”

The complaint asserts that “Eightfold’s Evaluation Tools then evaluate and rank job applicants using the data gathered from job applicants during the application process, the employer’s internal data, external data, and Eightfold’s proprietary LLM.”

Specifically, the complaint alleges that the evaluation includes not only the candidate’s profile and resume, but “supplemental candidate data gathered from public sources about the candidate’s professional history (such as blogs, publications, conferences, job application history, etc.),” data from other comparable employees, predictions about the candidate, and “data used to train Eightfold’s AI.”

Further, the complaint alleges that once an applicant applies for a job with an employer using the Eightfold tool, Eightfold retains that applicant’s data and uses it to evaluate other applicants for the same job, unrelated positions, or “for that same job applicant for other positions in the future.”

FCRA Protections

The FCRA and state equivalents such as the ICRAA regulate how employers obtain and use “consumer reports” (or background checks) for “employment purposes,” including hiring, promotion, or retention. The FCRA requires employers to provide stand-alone written disclosures to employees and job applicants, and to obtain written authorization before obtaining a report. To take “adverse action,” such as rejecting a job applicant based on information contained in a consumer report, the FCRA imposes additional pre-adverse action and adverse action notice requirements and provides an opportunity for the applicant to correct inaccurate information.

The FCRA further regulates “consumer reporting agenc[ies],” which are defined as entities that assemble or evaluate information on consumers for the purpose of furnishing consumer reports related to the consumer’s (i.e., applicant’s or employee’s) “character, general reputation, personal characteristics, or mode of living”—broad terms that encompass many applicant or employee attributes—to third parties.  The FCRA also provides consumers with the right to access, dispute, and correct information in their consumer reports.

Implications for Employers

While AI tools already have faced lawsuits and regulations alleging that they can lead to unlawful employment discrimination, the new Eightfold lawsuit raises novel allegations and questions about whether these tools may implicate the FCRA and other background check laws—a very different legal framework than employment discrimination statutes.

Next Steps

The Eightfold lawsuit could be the first of a new type of class action litigation targeting employment tools that use AI or automated or algorithmic decision-making processes that retrieve or use applicant- or employee-specific data. However, the case is in its early stages, and it is not clear whether the claims will survive litigation.

Employers may want to monitor this case and similar cases as they develop. In the meantime, they also may wish to review their use of AI-powered tools for recruitment and hiring. If such tools are used, employers may further want to evaluate how those tools function, including which specific data is collected and used in the evaluation of job applicants and employees.

Ogletree Deakins’ Background Checks Practice Group, Cybersecurity and Privacy Practice Group, and Technology Practice Group will continue to monitor developments and will provide updates on the Background Checks, California, Class Action, Cybersecurity and Privacy, Employment Law, and Technology blogs as additional information becomes available.

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Quick Hits

• The Revolutionary FAR Overhaul (RFO) is expected to proceed through formal notice and comment in the coming weeks and months.
• In the meantime, some changes are in effect through agency-specific deviations, some of which require a prime contractor to certify that “neither it nor any subcontractor or teaming partner operates or funds any program, policy, or initiative that promotes DEI in a manner that violates any applicable Federal anti-discrimination laws.”
• But the RFO is not currently set to deliver clarity on DEI certifications under EO 14173.

Ad Hoc EO 14173 Certifications: The Whole Supply Chain?

EO 14173 requires of all agencies the inclusion of contract terms that (1) establish the materiality of compliance with federal anti-discrimination laws to payment decisions under the False Claims Act (FCA) and (2) require certification that the recipient does not operate DEI programs that violate those laws. Litigation involving EO 14173 continues. Nevertheless, recent agency implementations have gone further than EO 14173, perhaps most prominently in specifically invoking criminal provisions, in placing severe responsibility on certifiers for downstream compliance without clear limits (i.e., downstream supplies or services necessary to the federal purpose), and in additional language attempting to establish materiality.

For example, the U.S. Department of Health and Human Services (HHS), in particular, requires the following provisions as part of its Civil Rights Assurance (in addition to a legacy requirement to submit Form HHS 690 Assurance of Compliance):

• “By applying for or accepting federal funds from HHS, recipients certify compliance with all federal antidiscrimination laws and these requirements and that complying with those laws is a material condition of receiving federal funding streams. Recipients are responsible for ensuring subrecipients, contractors, and partners also comply.”
• “The above requirements are conditions of payment that go [to] the essence of the Agreement and are therefore material terms of the Agreement.”
• “Payments under the Agreement are predicated on compliance with the above requirements, and therefore Recipient is not eligible for funding under the Agreement or to retain any funding under the Agreement absent compliance with the above requirements.”
• “Recipient acknowledges that this certification reflects a change in the government’s position regarding the materiality of the foregoing requirements and therefore any prior payment of similar claims does not reflect the materiality of the foregoing requirements to this Agreement.”
• “Recipient acknowledges that a knowing false statement relating to Recipient’s compliance with the above requirements and/or eligibility for the Agreement may subject Recipient to liability under the False Claims Act, 31 U.S.C. § 3729, and/or criminal liability, including under 18 U.S.C. §§ 287 and 1001.”

The U.S. Department of Agriculture goes even further, not only invoking criminal liability and additional materiality language, but also offering two different Anti-Discrimination and Diversity, Equity, and Inclusion (DEI) Certification clauses that require a contractor to certify that:

• “It is compliant with all applicable Federal anti-discrimination laws and the Equal Protection principles of the U.S. Constitution, and it will remain compliant for the duration of the contract.”
• “Neither it nor any subcontractor or teaming partner operates or funds any program, policy, or initiative that promotes DEI in a manner that violates any applicable Federal anti-discrimination laws, including but not limited to Title VI and VII of the Civil Rights Act of 1964, or the Equal Protection principles of the U.S. Constitution, and the Contractor and any subcontractor or teaming partner will not do so for the duration of the contract.”
• “[T]hat it will remain compliant with those laws [Title VI of the Civil Rights Act of 1964 or Title IX of the Education Amendments of 1972, as amended], including the requirements set forth in Executive Order 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, and Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”

Escalating Enforcement and Next Steps

As widely reported, the U.S. Department of Justice (DOJ) has sought documents from large contractors and grantees across sectors and has signaled that maintaining certain DEI hiring, promotion, or program delivery practices while certifying compliance may give rise to implied false certification theories. The confluence of all these trends is potentially increased exposure if a contractor over‑relies on unsupported socioeconomic or DEI‑related representations in the supply chain.

Next Steps

Recipients of federal funds may want to consider inventorying the certifications embedded in current contracts and grants, noting whether they include payment‑conditioning language, change‑in‑materiality statements, or subrecipient responsibility (and the extent of those obligations). Recipients may also want to review existing subcontracts to ensure the existence of flowdown and nondiscrimination language and determine a framework for monitoring compliance, including, potentially, reviewing program materials, participant feedback, and outcomes. Above all, recipients will likely want to continue monitoring DOJ activity and the changes to the FAR as enforcement and rulemaking advance.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group, Government Contracting and Reporting 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, Government Contracting and Reporting, and Workforce Analytics and Compliance blogs as additional information becomes available.

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Quick Hits

• Employers must provide mandatory training on preventing workplace violence.
• An amendment to the Federal Labor Law that would gradually reduce the standard workweek to forty hours by 2030 is making advances through the legislature, and if enacted, will enter into force on May 1, 2026.

Workplace Violence Prevention Amendments Now in Effect

On January 15, 2026, a decree was published in the Official Gazette of the Federation (Diario Oficial de la Federación (DOF)) reforming several laws, including the Federal Labor Law. These reforms focus on preventing workplace violence and discrimination and have a special focus on protecting women.

Employers must:

1. ensure work environments are free from discrimination and violence;
2. guarantee substantive equality between women and men; and
3. provide mandatory training on preventing violence, especially against women.

The reform also establishes a joint obligation for both employers and employees to maintain violence-free workplaces.

The Forty-Hour Workweek Amendment

On February 10, 2026, Senate of the Republic committees unanimously approved the forty-hour workweek amendment and on February 11, 2026, it was discussed and approved in the plenary session of the Senate. Hence, the project will continue its legislative course to the Chamber of Deputies. With the current administration’s supermajorities in both chambers, final approval is widely expected this year.

If the project is approved as currently drafted, the key takeaways are:

1. the constitutional amendment would enter into force on May 1, 2026 (Labor Day in Mexico);
2. reduction of the work schedule will be gradual, beginning January 1, 2027 (forty-six hours), followed by forty-four hours in 2028, forty-two in 2029, and reaching forty hours by 2030;
3. no wage reductions—wages would remain as they are currently;
4. no difference on shifts (day, mix, night);
5. two minimum rest days;
6. a revised overtime framework with enhanced pay rates; and
7. a requirement for employers to implement electronic time tracking.

The amendment is not final yet, but employers may want to start planning for compliance with the various provisions since approval is almost certain.

Ogletree Deakins’ Mexico City office will continue to monitor developments and will provide updates on the Cross-Border, Mexico, Wage and Hour, and Workplace Violence Prevention blogs 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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Quick Hits

• Nevada’s Senate Bill (SB) 260, effective January 1, 2026, mandates comprehensive requirements for employers to protect outdoor workers from wildfire smoke hazards.
• Employers must implement written programs to mitigate exposure, monitor air quality, provide employee training, and establish communication systems for reporting air quality and health symptoms.
• SB 260 includes specific measures for air quality index levels and exemptions for certain employers, with further regulatory measures to be established by the administrator of the Division of Industrial Relations.

Who Is Covered?

The law applies to employers whose employees “occasionally, frequently or constantly perform critical tasks outdoors.” Critically, the statute defines these terms precisely:

• “Constantly” means “an employee is performing critical tasks outdoors during at least two-thirds of his or her workday.”
• “Frequently” means “an employee is performing critical tasks outdoors during at least one-third but less than two-thirds of his or her workday.”
• “Occasionally” means “an employee is performing critical tasks outdoors during at least 2 percent but less than one-third of his or her workday.”

The law further defines “outdoors” as “a work environment where an employee moves to different work sites during the work day and is exposed to the elements.”

Key Employer Obligations

Under SB 260, covered employers must take several significant steps to protect their outdoor workforce.

Mitigation and monitoring programs. Employers must establish and implement a written program to mitigate employees’ exposure to poor air quality from wildfire smoke and monitor those employees for signs of health effects caused by such exposure.

Air quality monitoring. Employers must monitor air quality before and as conditions change during each shift of an employee who performs critical tasks outdoors. Monitoring must be conducted by determining the Environmental Protection Agency Air Quality Index value from AirNow for the location where critical tasks are being performed. If AirNow is unavailable, employers may use alternative sources including the U.S. Forest Service, the Interagency Wildland Fire Air Quality Response Program, the Air Quality Management Division of Northern Nevada Public Health, the Clark County Department of Air Quality Management, the Ambient Air Quality Monitoring Program, or the Bureau of Air Quality Planning of the Nevada Division of Air Quality Planning.

Employee training. Employers must provide training to affected employees in a language and format that is understandable to each employee. Training must cover the requirements of the law, the employer’s mitigation and monitoring program, and the potential hazards of not using personal protection equipment while working outdoors and being exposed to poor air quality from wildfire smoke.

Communications system. Each employer must establish a communications system that informs employees when they are being exposed to air quality where the Air Quality Index (AQI) is 150 or more during their shift, and of the protective controls available to reduce exposure. The system must also allow employees to report when they are exposed to such air quality and to communicate “any symptom related to such exposure, including, without limitation, asthmatic attacks, difficulty breathing or chest pain.”

Regulatory Measures Still to Come

The law directs the administrator of the Division of Industrial Relations of the Department of Business and Industry to establish specific measures employers must take when the AQI is 150 or more but less than 200, and when it is 200 or more. The administrator must also establish an AQI level caused by wildfire smoke at which employers are prohibited from allowing employees to perform critical tasks outdoors altogether. Additionally, the administrator may develop written guidance for employers on establishing compliant programs and may adopt any regulations necessary to carry out the law’s provisions.

Exemptions

Certain employers are exempt from these requirements. The law does not apply to employers that operate a mine, employ commercial truck drivers, provide emergency services (including police, firefighting, rescue, emergency medical services, or other services related to public safety), or have ten or fewer employees.

Next Steps for Employers

Employers may want to identify which employees perform critical tasks outdoors, develop written mitigation and monitoring programs, establish air quality monitoring protocols, create employee training materials in appropriate languages and formats, and implement a two-way communications system for reporting air quality conditions and symptoms.

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

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Quick Hits

• In the United States, non-unionized companies can mandate a return to the office due to at-will employment norms, but this may strain employee relations.
• Internationally, long-term remote work can become an implied term of employment, requiring employee consent to mandate a return to the office.
• Pairing return-to-office policies with beneficial changes may help encourage employee consent and mitigate legal risks.

Key Insights

1. U.S. vs. International

In the United States, where at-will employment is the employment doctrine in all states but Montana, companies can simply inform employees that they need to return to the office, whether part-time or full-time. Employees who do not comply can be dismissed. This is legally straightforward, though it may not be ideal for employee relations.

Outside the United States, the situation is more complicated. Long-term remote work can become an implied term and condition of employment, making it difficult to mandate a return to the office without employee consent.

2. Implied Terms and Conditions

In many countries, employment relationships are contractual and require a written contract stating the terms and conditions of employment. Even if remote work is not explicitly stated in the contract, it can become an implied term if it has been a consistent practice.

This means that employers cannot unilaterally change the terms and conditions of employment. They need to obtain employee consent for any amendments. For example, when an employer has a custom and practice of allowing employees to work from home two days a week, even though it is not written in the contract, it becomes an implied contractual term.

3. Contractual Amendments

Employers can propose a contractual amendment to bring employees back to the office, but employees must consent to it. Since employees have become accustomed to working remotely or from home, this is considered a detrimental change. Many employees will likely be hesitant to agree to an amendment.

If remote work has been in place for a significant period, such as from the onset of the COVID-19 pandemic, it may be challenging to revert to pre-pandemic office requirements, and will require careful handling. In some countries, employers will need to go through a consultation process with employees before they can ask for their consent to an amendment.

4. Consultation Process

Many jurisdictions consider consultations with employees a best practice (with the failure to do so creating exposure to legal challenges). Employers may want to propose the change to an in-office policy and then gather feedback from employees. This process can take several weeks and requires thorough documentation and consideration of employee input.

The feedback is essential to helping employers decide whether to make the change. When results indicate a return-to-the-office structure is warranted, employers can then attempt to finalize the change by notifying employees and asking them to sign a contractual amendment with new terms and conditions of employment.

5. Facilitating a Smooth Transition

Employers can pair detrimental changes, like a return-to-office policy, with beneficial changes such as a one-time bonus, improved medical or retirement plans, or enhanced parental leave.

The goal is to make the overall package attractive enough for employees to consent to all the changes. If not handled correctly, employers may face legal risks.

6. Legal Risks

Mishandling the process can lead to legal claims for breach of contract or constructive dismissal. Depending on the jurisdiction, employees have the right to make these kinds of claims in local labor courts.

7. Jurisdiction-Specific Considerations

The right to make flexible working requests varies by country. Some jurisdictions allow all employees to make these requests from day one, while others have specific requirements or limitations, such as waiting periods and/or service length. So even a legally-compliant process to bring employees back to the office could be thwarted by employees exercising their statutory right to make flexible working requests.

Key Takeaways

Assessing contractual obligations, consultation processes, and jurisdiction-specific regulations are important steps for multinational companies interested in reversing their work-from-home policies. By carefully planning and considering employee perspectives, companies can manage this transition effectively.

Ogletree Deakins’ Cross-Border Practice Group and Global Reorganizations Practice Group will continue to monitor developments and will post updates on the Cross-Border and Global Reorganizations blogs as additional information becomes available.

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