Quick Hits

• Regulatory inspections and investigations under Ontario’s Occupational Health and Safety Act (OHSA) take several forms, including proactive and reactive visits by Ministry of Labour, Immigration, Training and Skills Development (MOL) inspectors who are empowered to enforce compliance with the OHSA and protect worker health and safety.
• MOL inspectors have broad enforcement powers, including entering a workplace without a warrant or prior notice.
• Beyond the obligations established by the OHSA on employers while the MOL exercises its enforcement powers, there are important additional steps for employers to consider depending on the purpose and depth of the inquiry, including whether the investigation is a result of a critical injury or fatality in the workplace.

• In Binance, the Ontario Court of Appeal ruled that the OSC summons were overbroad and violated s. 8 of the Canadian Charter of Rights and Freedoms because it required the company to produce documents that OSC had no foundation to believe may be relevant to an investigation it was conducting.
• The analysis in Binance provides a framework for employers to push back on overly broad production demands by regulatory bodies.

Occupational Health and Safety Regulatory Scheme in Ontario

Regulatory inspections and investigations under Ontario’s Occupational Health and Safety Act (OHSA) take several forms—such as proactive inspections, complaint-driven inquiries, and post-incident reviews—all carried out by Ministry of Labour, Immigration, Training and Skills Development (MOL) inspectors who are empowered to enforce compliance with the OHSA and protect worker health and safety.

To carry out these functions, inspectors are vested with broad statutory powers, including the following:

• Inspectors may, among other things, enter any workplace at any time without a warrant or prior notice, question any person relevant to an investigation, seize and copy documents and records, test equipment and machinery, take photographs and require that a workplace remain undisturbed for a reasonable period.
• Where there are reasonable grounds to believe an offence has been committed, inspectors may also obtain investigative warrants from a justice of the peace or provincial judge authorizing the inspector to use any investigative technique or procedure or to do anything described in the warrant.
• In exigent circumstances, an inspector may exercise seizure powers without a warrant.

The OHSA establishes obligations on workplace parties while the MOL exercises its enforcement powers. For example, employers, among other parties, are required to co-operate with inspectors, and obstructing, hindering or providing false information to an inspector is itself an offence under the OHSA. Beyond the obligations established by the OHSA, there are important additional steps for employers to consider depending on the purpose and depth of the inquiry, such as whether the investigation is a result of a critical injury or fatality in the workplace.

Ontario Court of Appeal’s Decision

In Binance Holdings Limited, the Court of Appeal for Ontario considered a challenge to an investigative summons issued under the Securities Act. The OSC under section 13 of the Securities Act issued a broadly framed summons compelling Binance to produce documents and communications. Binance sought to challenge the summons on constitutional and statutory grounds.

On the merits, the court determined that section 8 of the Charter applied because an enforceable demand for production of business records is a seizure. Binance was entitled to protect the modest but reasonable expectation of privacy it has in its business documents from unreasonable seizure. Section 8 requires that compelled production be reasonable. The court affirmed that, even in the regulatory context, compelled production must be tied to the inquiry in progress. Regulatory bodies can compel documents that “may be relevant” to its inquiries, but those requests must not be broader than necessary for a “fishing expedition.”

The court stated that,

“… it only stands to reason that to be reasonable, a seizure must be related to the purpose for which the power of compulsion was created, and that if there is no realistic foundation for believing the target documents will be relevant to that inquiry, the seizure is not needed to facilitate a proper inquiry and is improper.”

Applying that standard, the court found the Binance summons unconstitutionally overbroad. In particular, a demand for “all communications” over a multiyear period among a wide array of individuals at Binance and its related entities, concerning Ontario or Canada generally, went far beyond any reasonable relevance to the stated investigation, amounting to an impermissible fishing expedition. The court set the summons aside and ordered the return of seized documents produced due to the invalid summons.

Relevance to Ontario’s Occupational Health and Safety Act

This decision provides a framework for employers responding to broad investigative demands from regulatory bodies such as the MOL, while recognizing the realities of the regulatory context.

First, scope and relevance constraints apply to compelled production in regulatory investigations. Although OHSA investigations also engage a reduced privacy expectation and may proceed without criminal law thresholds, section 8 still restricts compelled production to categories that may reasonably be relevant to the inquiry in progress. Overbroad demands untethered to the stated purpose risk being unreasonable and unconstitutional. Where an inspector’s demand or order sweeps in “all communications” or large classes of records without tailoring the demand, this decision supports insisting on narrower categories reasonably connected to the articulated safety inquiry, time period, individuals, and subject matter.

Second, regulators cannot justify fishing expeditions based on speculative relevance or generalized compliance concerns. The court rejected the argument that a regulatory body cannot know if a document is relevant without seeing it. For OHSA, that means MOL demands should delineate why the categories sought may bear on the incident, hazard, system, or alleged contravention under investigation.

The court’s insistence that administrative subpoenas or summonses be only as broad as necessary and targeted to what may be relevant provides employers a basis to resist unduly burdensome or unfocused demands, and if necessary, seek judicial intervention.

Ogletree Deakins’ Canada offices will continue to monitor developments and provide updates on the Canada, Cross-Border, and Workplace Safety and Health blogs as additional information becomes available.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

The changes—part of a broader EU simplification push following a provisional agreement reached between the Parliament, Council, and Commission on 7 May 2026—push back key compliance deadlines, introduce an outright ban on artificial intelligence (AI) tools used to generate nonconsensual intimate imagery, and resolve a long-standing overlap in the rules governing AI used in industrial machinery.

The EU Council still needs to sign off before any of this takes legal effect, but it is expected to do so before 2 August 2026. This article provides a broader cross-sector overview of the amendments. For more commentary on the implications for employers and HR teams specifically, please see our recent article, “EU Reaches Provisional Agreement to Delay Rules for AI Use in Employment Decisions.”

Quick Hits

• Key deadlines extended. For AI deployed in high-risk settings—e.g., hiring, education, law enforcement—the main compliance deadline shifts from 2 August 2026 to 2 December 2027. AI built into regulated products like medical devices and machinery gets until 2 August 2028.
• Certain apps are banned. AI systems generating nonconsensual intimate imagery or child sexual abuse material (CSAM) are outlawed from 2 December 2026. The ban covers both the companies that build these tools and those that deploy them.
• AI content labelling deadline extended. Tools already on the EU market before 2 August 2026 have until 2 December 2026 to add machine-readable labels identifying outputs as AI-generated.
• Machinery double-compliance resolved. AI-enabled machinery products will no longer need to satisfy both the EU AI Act and existing product safety laws simultaneously.

What Has Changed

Deferred Deadlines for High-Risk AI

The AI Act’s heaviest obligations fall on AI used in high-risk contexts. For employers, that principally means AI that is involved in recruitment decisions, performance evaluations, and access to essential services. Under Annex III to the AI Act, “high-risk” employment systems include AI used to place targeted job advertisements, filter applications, evaluate candidates, make decisions affecting employment terms, promotions, terminations, task allocation, and monitor or evaluate workers’ performance or behaviour. These requirements are now deferred by sixteen months—to 2 December 2027—largely because the industry technical standards that businesses need to benchmark compliance against are not yet ready. That is a legitimate reason for the extension, but it does not mean organisations can stand down. Enforcement bodies are already operational, a number of obligations are already live, and the original 2 August 2026 deadline stays on the books until the Council formally adopts this package.

Ban on ‘Nudifier’ Apps

From 2 December 2026, offering, selling, or using AI systems in the EU that generate realistic intimate imagery of an identifiable individual without the individual’s consent—or that produce CSAM—will be illegal. For tool developers, liability arises where this is the intended function or a foreseeable outcome without adequate safeguards; for businesses deploying third-party tools, liability arises where the tool is deliberately used for this purpose, including by disabling the developer’s own safety controls. The European Parliament’s co-rapporteur for the Civil Liberties, Justice and Home Affairs Committee, put it plainly: these apps “impact real people, overwhelmingly women, with the purpose of humiliating, degrading and objectifying them.”

Other Changes

Manufacturers of AI-enabled machinery escape the dual-compliance burden that existed under the original text: going forward, they need only satisfy the relevant product safety rules, with AI-specific requirements to be folded into those rules by 2028. Separately, AI features that do no more than assist users or optimise performance will not automatically attract the heavier compliance obligations, unless a failure could create a health or safety risk. Businesses that need to use sensitive personal data to test their AI systems for bias now have a clearer (if tightly constrained) basis to do so. And the small and medium-sized enterprises (SME) compliance exemptions have been extended to cover a broader group of growing mid-sized businesses.

What This Means for Employers

The extended deadline matters most to organisations that use AI in hiring and workforce management—tools for screening candidates, assessing performance, or allocating work all fall squarely in the high-risk category. The extra time is welcome, but those who have not yet taken stock of their AI landscape should start now rather than treating December 2027 as the new starting gun. The rules banning the most harmful AI applications and requiring staff who work with AI to have an appropriate level of AI literacy are already in effect. Employers using a vendor’s AI system for employment purposes are also required to follow the vendor’s instructions for use, which vendors are legally obliged to provide—making vendor contract review an immediate practical priority.

Any business offering or deploying AI content-generation tools needs to pay attention to the nudifier ban. The 2 December 2026 deadline is under six months away. Tool developers should be auditing their systems now; deploying organisations should be reviewing their acceptable-use policies and checking what their vendor contracts actually say about liability for misuse. For more discussion of the compliance steps employers can take now in relation to high-risk employment AI, including a breakdown of the Annex III categories and human oversight obligations, see our previous article, “EU Reaches Provisional Agreement to Delay Rules for AI Use in Employment Decisions.”

Key Dates

• 2 August 2026: AI content labelling applies to new tools. Most remaining AI Act provisions take effect.
• 2 December 2026: Content labelling is extended to existing tools. The nudifier and CSAM ban takes effect.
• 2 December 2027: Full compliance is required for high-risk AI in employment, education, law enforcement, and similar settings.
• 2 August 2028: Full compliance is required for AI in regulated physical products such as medical devices and machinery.

Note: The extended deadlines above are not yet legally binding. The EU Council must still formally approve the text, and it must be published in the Official Journal of the European Union before it takes effect. Council approval is expected before 2 August 2026, at which point the original EU AI Act deadlines will be superseded.

Looking Ahead

This is a recalibration, not a retreat. The core framework of the EU AI Act is unchanged, and the speed with which the nudifier ban was added—responding directly to a series of high-profile incidents—shows that the EU legislature is prepared to act quickly when it sees a clear problem. As noted in our earlier article on this topic, the delay in compliance deadlines does not change the underlying obligations for high-risk workplace AI; it simply provides additional time to prepare. More Commission guidance is expected in the coming months, including practical examples to help businesses work out where their AI tools fall within the EU AI Act’s risk tiers.

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• A nonprofit has sued DOL under FOIA to compel disclosure of federal contractors’ 2021 and 2022 Type 2 EEO-1 data, the most recent reporting years targeted by such a request.
• The suit mirrors an earlier case in California, Center for Investigative Reporting v. U.S. Department of Labor, where the same type of FOIA request for contractor EEO-1 data led to disclosure of the 2016 through 2020 reports.
• The suit was filed as the EEOC moves to rescind the EEO-1 reporting requirement, meaning contractors that filed Type 2 reports for 2021 and 2022 may face pressure to disclose data even as the report itself heads toward elimination.

The suit follows more than two years of administrative delay and comes just months after a separate FOIA dispute resulted in the Office of Federal Contract Compliance Programs’ (OFCCP) release of 2016 through 2020 EEO-1 reports of federal contractors. The lawsuit signals that requests for workforce demographic data will continue even as the future of the EEO-1 reporting obligation itself remains unsettled.

The Lawsuit

As You Sow’s April 2024 FOIA request sought a spreadsheet of all consolidated (Type 2) EEO-1 reports for all federal contractors for 2021 and 2022. Type 2 reports consolidate a multi-establishment employer’s companywide workforce by job category, sex, and race or ethnicity, which permits analysis of a contractor’s overall demographic composition. As You Sow, which describes itself as a nonprofit organization seeking the records for educational, research, and noncommercial purposes, also requested a waiver of fees.

According to the complaint, the request followed a lengthy administrative process. DOL acknowledged the request and routed it to OFCCP. DOL also denied the fee waiver request, prompting a separate appeal that was eventually resolved in As You Sow’s favor. At one point, DOL told the requester that EEO-1 requests were under review to determine whether the agency could still process them following the revocation of Executive Order 11246, which had served as the legal foundation for OFCCP’s federal contractor compliance authority. The complaint further alleges that DOL’s Appeals Unit found OFCCP’s response still outstanding and remanded the matter to OFCCP for a response.

The complaint alleges that, more than two years after the request was filed and acknowledged, As You Sow has received no records and no indication of when any records will be produced. As You Sow asserts that it has exhausted its administrative remedies and that DOL is improperly withholding records to which it has a statutory right of access. The complaint seeks a declaration that DOL’s failure to disclose is unlawful, an injunction against continued withholding, and an award of costs and attorneys’ fees.

A Familiar Path: The Center for Investigative Reporting Litigation

The As You Sow complaint follows the same theory advanced in earlier litigation over contractor EEO-1 data. The Center for Investigative Reporting (CIR) sued DOL in the U.S. District Court for the Northern District of California over a FOIA request for contractors’ 2016 through 2020 Type 2 reports, alleging that DOL violated FOIA by failing to notify the requester of a determination and failing to disclose the records.

The U.S. Court of Appeals for the Ninth Circuit held that EEO-1 Type 2 workforce demographic data is not protected commercial information under FOIA Exemption 4, affirming the district court’s order compelling disclosure. The ruling addressed only the 2016 through 2020 reports and did not resolve objections based on contractor status or jurisdiction. The Ninth Circuit’s decision is not binding on the District of Columbia court, but its reasoning could carry persuasive weight if DOL raises Exemption 4 as a defense in the As You Sow case.

After the government declined to seek rehearing, OFCCP released the withheld data in February 2026, beginning with five bellwether objectors and extending to the remaining objecting contractors on February 25, 2026.

The EEOC’s Proposed Rescission

The lawsuit also arrives as the federal government moves to end EEO-1 reporting. On May 14, 2026, EEOC submitted a proposed rule to the Office of Information and Regulatory Affairs (OIRA) that would rescind the EEO-1 reporting requirement, along with the EEO-2 through EEO-5 reports. OIRA concluded its review on June 9, 2026, clearing the way for EEOC to publish the proposed rule in the Federal Register, where it will be open for public comment before EEOC can issue any final rule.

The rescission is not yet in effect. Until EEOC completes the rulemaking process, covered employers’ existing obligation to collect and report EEO-1 workforce demographic data remains in force, and employers may wish to be prepared to file if EEOC opens a 2026 filing window. If finalized, however, the rescission would end a reporting obligation that has been in place since 1966, while requesters such as As You Sow continue to seek data already submitted under that obligation.

Next Steps

The As You Sow complaint confirms that contractor EEO-1 data remains a focus of FOIA requesters. Federal contractors that filed Type 2 reports for 2021 and 2022 may want to monitor this matter, review how their organizations have historically treated EEO-1 data as confidential, and consider how a potential disclosure could intersect with their broader compliance strategies.

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

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• A number of states passed new laws in 2026 related to paid and unpaid leave, employment discrimination, child labor, noncompete clauses, and pay transparency, among other things.
• These new state laws will take effect on July 1, 2026, unless otherwise noted.
• See our article, “2026 Midyear State and Local Minimum Wage Increases,” for a roundup of changes to state minimum wage rates taking effect in mid-2026.

Arkansas

In Arkansas, a new law imposes data privacy and security requirements on covered operators of websites, online services, online applications, or mobile apps if the product or service is directed at children or teens or if the operator knows that it is collecting personal information from children or teens.

Connecticut

Connecticut has a new law that establishes workplace standards for warehouse employers, including requirements to provide written notice of performance quotas, maintain work speed data records for three years, and protect covered nonexempt employees from adverse action for exercising their rights under the law. It applies to employers with 250 or more employees at a single Connecticut warehouse distribution center.

Florida

HB 1407 revised the procedural framework for civil actions and administrative remedies under the Florida Civil Rights Act (FCRA), which prohibits employment discrimination based on race, religion, gender, pregnancy, and other protected characteristics. Claims brought under the FCRA would have to be commenced no later than oneyear after the date of determination of reasonable cause by the Florida Commission on Human Relations or the issuance of a notice of right to sue letter by the U.S. Equal Employment Opportunity Commission, whichever is earlier.

Georgia

• A new law in Georgia permits independent contractors, including gig workers, to receive voluntary portable benefit contributions for health insurance, paid time off, and retirement without jeopardizing their independent contractor status.
• Georgia legalized medical marijuana for patients who have a registration card from the state Department of Public Health because of a medical diagnosis, such as cancer, multiple sclerosis, Parkinson’s disease, or post-traumatic stress disorder. The law does not provide express employment protections. Employers are not required to permit or accommodate marijuana possession or use by employees while on duty or off duty.

Hawaii

Within its Family Leave Law, Hawaii added qualifying military exigencies as a permissible reason for family leave. The other permitted reasons for using the unpaid family leave include the birth or adoption of a child or caring for a family member with a serious health condition.

Indiana

• SB 76 allows the state attorney general to bring an enforcement action against an employer if probable cause exists that the employer knowingly or intentionally recruited, hired, or continued to employ an unauthorized noncitizen in Indiana.

• Under HB 1302, Indiana employers no longer need to register with state Department of Labor to employ minors. Previously, employers could have faced civil penalties for failing to register the correct number of minors with the state Department of Labor. Minors do not need a work permit to work in Indiana.

Maine

• Under Legislative Document (LD) 54, all job postings for Maine employers must include a statement listing the prospective range of pay to be offered. This law will take effect on July 29, 2026.

• Starting on May 1, 2026, Maine employees are eligible to receive paid family and medical leave benefits. Starting on July 1, 2026, the maximum weekly benefit amount for paid family and medical leave claims will be $1,249.12. The amount is calculated using a tiered formula based on the state average weekly wage.

• Maine updated its law governing drug testing by employers. This law will take effect on July 29, 2026.

Nebraska

A new law in Nebraska (Legislative Bill 921) requires employers with one hundred or more workers to provide notice at least ninety days before a mass layoff or business closing. It will take effect on July 18, 2026.

New Hampshire

Employers in New Hampshire may be subject to civil penalties for violating the state law that mandates workplace accommodations for lactating employees. The lawrequires employers with six or more employees to provide unpaid thirty-minute breaks to pump breast milk for every three hours of work, inside a private, clean, nonbathroom space.

Tennessee

A new law in Tennessee bans noncompete agreements for workers who earn less than $70,000 per year.

Virginia

• A new law in Virginia expands paid sick leave to all public and private employees. The paid sick leave legislation mandates one hour of paid sick leave for every thirty hours worked, with an annual accrual and use cap of forty hours. In addition, the state’s paid family and medical leave law establishes a payroll-funded insurance program, providing qualifying employees with up to twelve weeks of paid leave at 80 percent of their average weekly wage, with contributions split between employers and employees.
  
  
• Virginia law now requires employers to (a) disclose, in all public and internal job postings, the wage, salary, or wage or salary range for the position; and (b) set the wage or salary range in good faith. Additionally, Virginia now has a statewide salary history ban, prohibiting private employers from inquiring into and/or relying on an applicant’s compensation history.

• Noncompete covenants will be unenforceable if an employer discharged an employee without providing severance pay, unless the employer discharged the employee for cause. As of July 1, 2026, any severance benefits or other monetary payments that will support enforcement of a noncompete covenant must be disclosed to the employee at the time the covenant is executed. In addition, SB 128 (Chapter 1114) broadened the existing ban on “low-wage” covenants not to compete to include all “health care professionals.” 

• SB 637 (Chapter 950) expands the statute of limitations for Virginia Human Rights Act (VHRA) claims and redefines “employer” to include small businesses. Previously, the VHRA applied mostly to employers with fifteen or more employees. SB 637 expands this coverage to employers with five or more employees.

• Virginia’s wage payment statute has added a new definition of “employer” to be consistent with the Fair Labor Standards Act (FLSA), and “wages,” expanding the definition to include commissions, tips, bonuses, and most other earnings. Employers must keep employees’ pay statements for at least three years after the work was performed.

• Virginia now prohibits employers from discharging or otherwise retaliating against an employee who is absent from work because the employee is serving as a volunteer emergency responderactively responding to an emergency alarm or during a state of emergency.

• Virginia prohibits storing handguns in unattended vehicles or trunks unless they are locked and out of plain view. Property owners can prohibit weapons on private property, and private parking lots are not excluded from this law.

Washington State

• Washington requires employers with fifteen or more employees to comply with state-specific, pre-adverse action letters or processes for criminal checks. Washington further restricts employer inquiries about criminal history and imposes a new notice requirement for self-disclosures.

• Employers of minors must obtain a minor work permit for each location where the employer employs minors and maintain on file a completed parent/school authorization form or a completed parent authorization form for each minor before the minor begins work. Washingtonemployers may employ minors aged sixteen and seventeen to work up to twenty-eight hours per week if they obtain a special variance from the minor.

• Employers cannot request, require, or coerce an employee to have a microchip implanted in the employee’s body. The law, which became effective June 11, 2026, provides employees with a private right of action for injunctive relief and monetary damages, and attorneys’ fees and costs.

Ogletree Deakins will continue to monitor developments and will post updates on the Background Checks, Cybersecurity and Privacy, Drug Testing, Employment Law, Healthcare, Leaves of Absence, Pay Equity, Reductions in Force, State Developments, Trucking & Logistics, Unfair Competition and Trade Secrets, Wage and Hour, Workplace Safety and Health, and Workplace Violence Prevention blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on federal and state laws through the Compliance Hub, as well as the Build a Table, Search, and forthcoming Compliance Calendar features. Premium-level subscribers have access to comprehensive law summaries and templates; Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.

Adam T. Pankratz is a shareholder in Ogletree Deakins’ Seattle office.

J. Clay Rollins is a shareholder in Ogletree Deakins’ Richmond office.

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• USCIS will continue to accept adjustment of status filings based on the Final Action Dates for Filing Chart in July 2026.
• Visas are unavailable for the remainder of the fiscal year for EB-2 applicants from India.
• EB-4 Certain Religious Workers (SR) is showing priority dates again due to the program’s extension to September 30, 2026.

U.S. Citizenship and Immigration Services (USCIS) recently announced that it would continue to accept employment-based adjustment of status filings based on the Final Action Dates for Filing Chart in July 2026.

Final Action Dates

The final action dates across many categories have advanced and retrogressed slightly. However, the most significant movement is that the EB-2 Category for India is now unavailable (U) for the remainder of the fiscal year.

• EB-1: The final action dates for China-mainland advanced by one month while the dates for India retrogressed by two months. All other countries continue to be current.
• EB-2: The final action dates for India EB-2 are now unavailable for the fiscal year. All other countries remain the same.
• EB-3: All countries advance except for Philippines which remains at August 1, 2023.
• EB-4: All countries have advanced from July 15, 2022, to September 15, 2022.
• EB‑4 Certain Religious Workers: This category has advanced from July 15, 2022, to September 15, 2022.
• EB-5: China-mainland born in the 5th Unreserved category has moved from September 22, 2016, to December 1, 2016, and India has become unavailable for the remainder of the fiscal year. All other countries and categories remain current.

Source: U.S. Department of State, July 2026 Visa Bulletin, Final Action Dates Chart

Key Takeaways

With some advancement in final action dates, more applicants will become eligible to complete the final step of the permanent residency process. Applications in the India EB-2 category will no longer be processed by USCIS until the new fiscal year in October 2026.

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

For additional insight into the critical immigration issues facing employers today, please join our Virtual Immigration Insights Symposium on Wednesday, October 7, 2026, from noon to 2:30 p.m. ET. Register here.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

$100,000 H-1B Fee Temporarily Back in Effect. Just days after the U.S. District Court for the District of Massachusetts vacated President Trump’s $100,000 H-1B proclamation, the policy is temporarily back in effect. Here’s what happened. Shortly after the district court vacated the policy, the administration filed an appeal of the decision with the U.S. Court of Appeals for the First Circuit. The administration also filed a motion to stay with the district court, asking the court to pause its ruling during the pendency of the appeal. The district court granted a temporary administrative pause of its ruling while the administration petitions the court of appeals for a full stay as the appeal on the merits goes forward. This means that the administration can continue to collect the $100,000 fee for now, though this may change after the court of appeals rules on the administration’s motion to stay. Evan D. Anderson has more.

Proposed EEO-1 Rescission Moves Forward. The White House’s Office of Information and Regulatory Affairs (OIRA) has completed its review of the U.S. Equal Employment Opportunity Commission’s (EEOC) draft proposal to eliminate the Employer Information Report (EEO-1). This means that the EEOC is likely to release the proposal for public comment at any moment. Meanwhile, the EEOC has still not opened the EEO-1 filing portal for the 2025 reporting year.

Teamsters Run It Back With O’Brien. The International Brotherhood of Teamsters voted to reelect Sean O’Brien as its general president during the union’s convention this week. O’Brien’s new five-year term will begin in March 2027. Consider his political influence during the current administration alone:

• O’Brien managed to persuade twenty Republicans to vote for the Faster Labor Contracts Act (FLCA) in the U.S. House of Representatives and three Republicans to cosponsor the bill in the U.S. Senate. One of those cosponsors, Senator Josh Hawley (R-MO), invited O’Brien to promote the FLCA during a hearing of the Senate Committee on Health, Education, Labor and Pensions in October 2025.
• O’Brien reportedly pushed the White House to endorse the Railway Safety Act, which was subsequently included in the “Building Unrivaled Infrastructure and Long-Term Development (BUILD) for America’s 250th Act” (“BUILD America 250 Act”) (H.R. 8870), which is making its way through the House.
• O’Brien successfully advocated for the appointment of former representative Lori Chavez-DeRemer (R-OR)—who supported the Protecting the Right to Organize Act—to be secretary of labor in the Trump administration. (Chavez-DeRemer, who was sworn in as labor secretary on March 11, 2025, stepped down on April 20, 2026.)
• O’Brien was a featured speaker at the Republican National Convention in 2024.
• O’Brien accompanied former senator Markwayne Mullin (R-OK) at Mullin’s confirmation hearing to be secretary of homeland security.

O’Brien will undoubtedly continue to play an outsized role in Washington, D.C., labor policy debates, no matter what happens in the 2026 midterm elections.

Senate Committee Advances College Athletics Bill. Today, the U.S. Senate Committee on Commerce, Science and Transportation voted, 19–9, to approve the Protect College Sports Act. The bill would establish a federal framework governing multiple aspects of collegiate athletics, including play eligibility, student-athlete transfers, and name, image, and likeness (NIL) rules. However, as the Buzz has previously discussed, the bill “is neutral on, and does nothing to alter, employee or non-employee status for student athletes.”

Smoot-Hawley. This week in 1930, President Herbert Hoover signed into law the Smoot–Hawley Tariff Act, despite a petition signed by more than 1,000 economists urging him to veto the bill. What started as a limited effort to help struggling American farmers by imposing new tariffs on foreign agricultural products quickly ballooned into a broader legislative scheme to increase tariffs on more than 20,000 imported products. Spearheaded by Senator Reed Smoot (R-UT) and Representative Willis C. Hawley (R-OR), the law turned out to be a disaster. Foreign countries immediately instituted their own retaliatory tariffs, leading to a freeze of international trade that deepened the Great Depression. The law was a political disaster, as well, as Hoover, Smoot, and Hawley, all lost in the 1932 elections. Though technically not repealed, Smoot-Hawley was essentially replaced by the Reciprocal Trade Agreements Act of 1934 that President Franklin D. Roosevelt signed into law.

The Buzz will return to its regularly scheduled programming on Friday, June 26, 2026.

Quick Hits

• A Texas judge ruled that conversations with generative AI tools could be protected as attorney work product under Texas law, diverging from a recent landmark federal case.
• The decision implies that using AI does not automatically waive privilege, as such conversations may not be likely to be disclosed to adversaries.
• Employers may want to monitor employee interactions with AI to manage potential risks to attorney-client privilege and confidentiality.

On June 3, 2026, Judge Grant Dorfman for the Texas Business Court Eleventh Division issued a minute entry in Tate Group Automotive, LLC v. Legacy Automotive Capital, LLC, ruling that a non-lawyer’s AI conversations, prepared in anticipation of litigation, could qualify as privileged work product under Texas procedural rules.

Judge Dorfman indicated that AI conversations could be covered by the work-product protection under Texas law, citing the Texas rules of civil procedure that work product is “material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party….” (Emphasis in decision.) In other words, work product is not limited to materials developed by lawyers and may include materials generated by the principal of a corporate entity—as was the case in Tate, or by pro se litigants.

In this vein, Judge Dorfman cited with approval two recent district court opinions involving the use of AI by self-represented litigants in employment litigation: a February 2026 ruling from the U.S. District Court for the Eastern District of Michigan, and a March 2026 ruling from the U.S. District Court for the District of Colorado, Morgan v. V2X, Inc. In citing these opinions, Judge Dorfman seemingly endorsed the rationale of those courts that the work product protection is waived only when materials are disclosed to an adversary, or in a manner substantially likely to reach one. The ruling thus suggests that the use of an AI tool did not fall within those parameters for waiver.

Notably, the judge “disagree[d]” with United States v. Heppner, a landmark February 2026 case from the U.S. District Court for the Southern District of New York. That case held that exchanges between a criminal defendant and publicly available generative AI platforms are not protected by the attorney-client privilege or the work-product doctrine. In that case, the federal court found that inputting sensitive information into a third-party consumer AI platform constitutes a voluntary disclosure outside the attorney-client relationship.

But Judge Dorfman stated that “the Texas rules set forth a different standard for protectable attorney work product and plainly appear on their face to extend that protection to” the plaintiff’s conversations with an AI tool.

Still, ultimately, the judge said the privilege only extends so far and ordered the plaintiff to hand over “all discovery materials or products that it has shared with” the AI tool, including materials produced under a protective order. The judge further recommended that the parties confer on amendments to a protective order “that would make unquestionably clear whether, how, and to what extent, if so, Confidential Information may be shared with any AI tool or other Large Language Model system.”

Key Takeaways

The Texas Business Court’s ruling comes as courts are grappling with, and reaching divergent conclusions about, how to handle privilege and parties’ exchanges with popular, publicly available generative AI platforms. Such issues are likely to grow as the use of generative AI tools becomes more ubiquitous.

Judge Dorfman’s minute entry, while not a full opinion on the merits, suggests that Texas courts may be more flexible in interpreting work-product protection for AI conversations, even when involving non-lawyer parties. Specifically, Judge Dorfman noted that the Texas rules of civil procedure protect parties’ materials and impressions developed in anticipation of litigation. The judge further suggested that discussions with a publicly available AI tool do not necessarily waive the privilege, as those conversations may not be substantially likely to be found by adverse parties.

Employers may want to review the extent to which their employees are using AI tools to make employment-related decisions and to make other decisions in response to employee complaints or the threat of litigation. Such materials may or may not be covered by the attorney-client privilege or the work-product doctrine, and disclosure of confidential information by non-lawyers to an AI tool may constitute a waiver of the privilege.

The case law to date suggests that individuals increase the risk of being found to have waived privilege when they use public AI tools, as opposed to enterprise-based AI tools. Additionally, beyond concerns of waiver, employers may need to evaluate whether generative AI tools constitute preservable electronically stored information (ESI) when issuing litigation holds. This is a quickly evolving issue on emerging technologies so employers may want to stay abreast of new developments.

Ogletree Deakins’ Technology Practice Group, Whistleblower and Ethics Practice Group, and Workplace Investigations and Organizational Assessments Practice Group will continue to monitor developments and will provide updates on the Employment Law, Ethics/Whistleblower, Technology, and Workplace Investigations and Organizational Assessments as additional information becomes available.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• Objecting that a plaintiff’s summary judgment evidence is “self-serving” is not a valid evidentiary objection and can provide grounds for reversal on appeal.
• Evidence at summary judgment need not be in admissible form; the correct objection is that the material cannot be presented in any admissible form at trial.
• Defense lawyers who make incorrect evidentiary objections at summary judgment risk losing credibility, wasting briefing space, and having favorable rulings reversed on appeal.

There is nothing wrong with “self-serving” evidence. What other kind of evidence would a party submit? Yet, lawyers regularly file briefs (and courts occasionally issue sloppily written opinions) that attack a plaintiff’s summary judgment evidence as “self-serving,” as if that makes it suspect or inappropriate. The fact that a witness’s testimony is self-serving or uncorroborated may be grounds for questioning the witness’s credibility, but credibility is for trial and not for summary judgment. So, a “self-serving” objection is not usually a worthwhile argument at summary judgment. Worse, winning summary judgment because the trial court disregarded evidence as “self-serving” hands the plaintiff a basis for reversal.

Instead of objecting that evidence is “self-serving,” trial lawyers may instead want to consider one or more of the following arguments: (1) the affidavit is not made on personal knowledge or first-hand experience; (2) the affidavit presents only conclusions or opinions; (3) the affidavit is too vague to genuinely dispute any facts; and (4) the fact presented, or the genuine factual dispute created by the affidavit, is not material to the issue. Note, however, that there may be extreme situations in which it is appropriate to object that an opposing witness’s version is so demonstrably false (e.g., it contradicts an unaltered video) that no reasonable jury could believe it.

A second potential summary judgment mistake is objecting that material is “inadmissible.” In fact, under Fed. R. Civ. P. 56(c)(2), evidence need not be in admissible form to use it at summary judgment. The proper objection is that “the material … cannot be presented in a form that would be admissible in evidence.” The point to be made to the trial court in the defendant’s summary judgment motion (or on reply) is not that the plaintiff’s material is currently not admissible, but that it is currently not admissible and cannot be made admissible. Similarly, the Fed. R. Civ. P. 56(c)(2) advisory committee stated in a note to the 2010 amendment that the proponent of the material need show only that the material “is admissible as presented or to explain the admissible form that is anticipated.”

If the other side’s proffered evidence can easily be made admissible—e.g., by providing a witness at trial to provide in-court testimony, authentication, or to lay a foundation—the objection may not be worthwhile. Making the wrong objection not only lessens counsel’s credibility and wastes space, it also risks reversal on appeal. If the correct objection to evidence is available, make that one. If the material at issue could easily be put in admissible form at trial, and especially if the means to do so is apparent, consider whether the objection is worth the risks.

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• Effective June 5, 2026, commercial establishments located in Erie County, New York, are prohibited from collecting, storing, retaining, selling, or otherwise monetizing data that can be used to identify individual customers.
• Local commercial establishments must disclose the amount and type of biometric identifier information they retain.
• Commercial establishments in Erie County must plan to permanently delete or destroy the data retained.

Key Provisions of the Law

Starting on June 5, 2026, all for-profit and not-for-profit businesses operating in Erie County, which includes Buffalo, the state’s second-largest city, are prohibited from collecting, storing, procuring, using, and selling or otherwise monetizing customer biometric identifier information.

Biometric identifier information is defined as information that “depict[s] or describe[s] physical, biological, or behavioral traits, characteristics, or measurements of or relating to an identified or identifiable person’s body.” Biometric identifier information includes images, descriptions, and recordings of an individual’s facial features, retina, fingerprints, voice, and characteristic movements or gestures, among other things. 

Practical Implications for Employers and Businesses

The law does not affect a commercial establishment’s use of video footage and photography for surveillance or other purposes, but rather applies to the use of software, digital, or computing applications that assist with the identification of individuals based on physiological or biological characteristics.

Notably, the law also does not apply to employers that may collect biometric identifier information of their employees.

Next Steps

By July 5, 2026, commercial establishments in possession of biometric identifier information must submit written notice to the director of the Erie County Department of Public Advocacy Division of Consumer Protection regarding whether they are in possession of biometric identifier information.

Commercial establishments in possession of biometric identifier information must disclose the type and amount of biometric identifier information collected, and a written policy that includes the method and deadline by which they will permanently delete or destroy the biometric identifier information in their possession.

Commercial establishments will then have thirty days to permanently delete or destroy the biometric identifier information in their possession. Establishments must then submit an affidavit certifying that they have permanently deleted or destroyed the biometric identifier information.

Commercial establishments may be subject to a civil penalty each day they are found to be in violation of the law. 

Key Takeaway

Commercial establishments operating in Erie County may want to review their policies on collecting customer biometric identifier information and to ensure they comply with the fast-approaching July 5, 2026, written notice deadline.

Ogletree Deakins’ Buffalo office and Cybersecurity and Privacy Practice Group will continue to monitor developments and provide updates on the Cybersecurity and Privacy, Hospitality, New York, and Retail blogs as additional information becomes available.

In doing so, the proposed rule appears to flip the old presumption on its head, allowing the existence of the prior presumption to serve as evidence of discrimination against those who were excluded from it.

Quick Hits

• The proposed rule replaces the old eligibility framework with a new test requiring applicants to show that a governmental or private entity discriminated against or was biased against their racial, ethnic, or cultural group, and that such discrimination caused them material harm.
• The rule explicitly identifies “unlawful” DEI programs, affirmative action policies, race-based quotas, set-asides, and hiring targets as qualifying bases for establishing social disadvantage, meaning that corporate DEI programs could become evidence of discrimination in 8(a) certification proceedings.
• Applicants can self-certify group membership and material harm, defined as “loss of access to or diminished opportunities related to economic advancement,” and need not show that the discrimination directly impacted their entry into or advancement in business.
• The rule applies only to individually owned 8(a) applicants and does not affect entity-owned firms, including businesses owned by tribes, Alaska Native Corporations, Native Hawaiian Organizations, or Community Development Corporations.

Background

As we discussed in our February 2026 article, SBA previously released policy guidance signaling that it would administer the 8(a) program on a strictly race-neutral basis going forward and would no longer allow presumptions of social disadvantage to establish program eligibility.

That guidance abandoned prior narrative frameworks, replacing them with a fact-specific inquiry into whether an individual has actually experienced social disadvantage. SBA also announced that only sixty-five companies were admitted to the 8(a) program in 2025, signaling a materially narrower program. SBA indicated it was finalizing formal regulatory changes, and the proposed rule published on June 11, 2026, is that follow-on action.

What the Proposed Rule Would Change

The proposed rule makes four targeted changes to 13 C.F.R. § 124.103:

First, the regulation would be revised to align with the statutory text in 15 U.S.C. § 637(a)(5), which defines socially disadvantaged individuals in race-neutral terms.

Second, the current regulatory tests for social disadvantage would be replaced with a new test. Under that test, an applicant to the 8(a) program can establish social disadvantage by showing that during the applicant’s lifetime, a governmental or private entity discriminated or was biased against a clearly definable racial, ethnic, or cultural group of which the applicant is a member, or favored a group of which he or she is not a member, and that such discrimination conferred material harm on the applicant.

Third, the current non-presumptive test under 13 C.F.R. § 124.103(c) would be removed, making the new test the sole test for establishing social disadvantage.

Fourth, the process for group inclusion on the rebuttable presumption list would be eliminated entirely.

However, the proposed rule applies only to individually owned 8(a) applicants and does not affect entity-owned firms, including businesses owned by tribes, Alaska Native Corporations, Native Hawaiian Organizations, or Community Development Corporations.

What Does It Mean to Be Impacted by ‘Unlawful’ DEI Programs?

The most significant aspect of the proposed rule is its explicit incorporation of unlawful DEI programs as a basis for establishing social disadvantage. The proposed regulatory text at 13 C.F.R. § 124.103(b)(3)(ii) provides that an applicant must show evidence that a government or private entity’s action, policy, rule, regulation, or other practice “favored other groups, excluding the citizen’s group, or disadvantaged the citizen’s group.” The regulation then provides a non-exhaustive list of qualifying actions, which includes:

• Unlawful diversity, equity, and inclusion programs or policies
• Unlawful affirmative action programs or policies
• Race-based quotas, set-asides, or hiring targets
• Any policies or programs that favored some groups over others on the basis of race

SBA provides two specific examples in the proposed regulatory text. First, as discussed above, prior iterations of 13 C.F.R. § 124.103 that excluded an applicant’s racial or ethnic group from the rebuttable presumption would themselves qualify as discriminatory government action. Second, situations where the applicant’s group was disadvantaged in college or university admissions decisions or otherwise discriminated against by a private entity in an unlawful manner, as contemplated in recent U.S. Supreme Court decisions addressing affirmative action programs.

The term “material harm” is defined in the proposed rule as “loss of access to or diminished opportunities related to economic advancement.” To establish individual harm, the applicant may self-certify that he or she (1) was a member of the relevant group at the time of the discriminatory action or during the effective period of the relevant policy, and (2) suffered material harm because of that action. The applicant must also submit evidence that the government or private entity’s action favored or disfavored groups. Sufficient evidence may include materials on government, university, and corporate websites; policies, regulations, guidance, procedures, or documents; statements by officials; reports, audits, or findings; court decisions; or administrative rulings.

Notably, the proposed test does not require the applicant to show that the discrimination directly impacted their entry into or advancement in the business world, which was a requirement under the prior non-presumptive test. Instead, the material harm standard of “loss of access to or diminished opportunities related to economic advancement” is broader and can be self-certified.

Implications of 8(a) Program Changes for Employers

Although this proposed rule is directed at SBA’s small business certification program and not at employers broadly, it carries several implications worth monitoring.

Signaling on What Constitutes “Unlawful” DEI

The rule does not define what makes a DEI program “unlawful,” but its examples and legal citations point toward programs involving race-based preferences, quotas, set-asides, or hiring targets, particularly those that a court has found or could find to violate Title VII of the Civil Rights Act of 1964 or the Equal Protection Clause of the Fourteenth Amendment. This is consistent with the administration’s broader posture toward workplace DEI initiatives under Executive Orders 14173 and 14398, and it reinforces the growing regulatory environment in which race-conscious workforce programs face heightened scrutiny. Indeed, the phrase “unlawful diversity, equity, and inclusion programs or policies” echoes technical assistance from, in particular, the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC has stated that DEI is a broad term not defined in Title VII and that “DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.” Further, the EEOC has cautioned that race or sex preferences are not lawful regardless of any “business interests in ‘diversity, equity, or inclusion.’”

Potential Evidentiary Use of Employer DEI Programs

Under the proposed test, an applicant seeking 8(a) certification could point to a corporation’s DEI policies as the basis for establishing social disadvantage. Sufficient evidence could include corporate policies, guidance documents, statements by corporate officials, reports, and audits. While this alone does not create new legal liability for employers, it does create a federal regulatory framework in which corporate DEI programs are treated as evidence of discrimination against excluded groups. Employers should be aware that their DEI policies and programs could become part of the administrative record in 8(a) certification proceedings.

Limited Direct Impact on Larger Employers

The 8(a) program is limited to small businesses, and the proposed rule will primarily affect the approximately 4,190 individual applicants annually. Companies that exceed SBA size standards will not be directly impacted. The broader significance is thematic: the rule reflects the administration’s view that race-conscious programs constitute actionable discrimination and creates a regulatory mechanism that rewards individuals who can demonstrate harm from such programs. However, many larger employers are federal contractors and may have exposure to the 8(a) program through their Federal Acquisition Regulatio (FAR) Part 19–related subcontracting programs. Further, for federal contractors and grant recipients, the proposed SBA rule should be viewed alongside Executive Order 14173’s certification framework, which requires federal contractors and grant recipients to certify that they do not operate programs promoting DEI that violate applicable federal antidiscrimination laws.

Related Developments in the DOT DBE Program

The SBA proposal also fits within a broader federal shift away from race- or sex-based presumptions in small-business contracting programs. The U.S. Department of Transportation’s (DOT) October 2025 DBE (Disadvantaged Business Enterprise) and ACDBE (Airport Concession DBE) interim final rule similarly removed race- and sex-based presumptions of social and economic disadvantage after the DOT and the U.S. Department of Justice (DOJ) concluded that those presumptions violated equal-protection principles. But the two frameworks diverge in important ways. The DOT now requires all DBE and ACDBE owners to make an individualized showing, supported by a personal narrative and evidence of economic hardship, systemic barriers, denied opportunities, and resulting economic harm. SBA’s proposed 8(a) rule, by contrast, would allow a U.S. citizen to establish social disadvantage through evidence that a governmental or private entity favored or disfavored racial, ethnic, or cultural groups, coupled with self-certification of group membership and material harm.

Looking Ahead

Comments on the SBA’s proposed rule are due on or before July 13, 2026. SBA has requested comment on any reliance interests that would be implicated by these proposed changes, though it does not currently intend to apply the new test to current participants. Given that SBA has not approved a new 8(a) application since August 2025 and the number of active firms has fallen below 3,000, the rule will primarily affect the pipeline of new applicants.

For employers, while the direct impact on companies too large for the 8(a) program is negligible, the rule’s treatment of corporate DEI policies as evidence of discrimination is consistent with broader enforcement trends and is worth monitoring as part of an overall compliance strategy.

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

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts