Senate Committee Postpones Vote on NLRB. This week, the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) was forced to postpone a scheduled vote to advance the nomination of Scott Mayer to be a member of the National Labor Relations Board (NLRB). Republicans hold a slim 12–11 voting majority on the HELP Committee, meaning that a loss of just one vote could make it challenging to approve any nominee. Mayer’s nomination thus lags behind fellow Board nominee James Murphy and NLRB general counsel nominee, Crystal Carey, both of whom have already been approved by the committee and await a vote on the Senate floor.

President Trump Sends EEOC GC Nominee to Senate. President Donald Trump has nominated management attorney M. Carter Crow to serve as general counsel of the U.S. Equal Employment Opportunity Commission (EEOC). Given the administration’s theory that the Commission is not an independent agency but rather firmly within the executive branch, if confirmed, Carter can likely be expected to pursue an enforcement agenda that tracks with EEOC Chair Andrea Lucas’s priorities (which align with those of the administration). The Commission’s previous acting general counsel, Andrew Rogers, is now the administrator of the Wage and Hour Division at the U.S. Department of Labor (DOL). Principal deputy general counsel, Catherine Eshbach, is currently performing the duties of the general counsel at the Commission. T. Scott Kelly, Nonnie L. Shivers, James J. Plunkett, and Zachary V. Zagger have the details.

Senator Seeks Changes to OPT. According to the administration’s Spring 2025 Unified Agenda of Regulatory and Deregulatory Actions, in September of this year, the U.S. Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) was scheduled to issue a proposed regulation to amend the Optional Training Practical (OPT) Program. The program provides F-1 student visa holders with one year of work authorization after graduation, and an additional two years if they graduate with a STEM degree. In anticipation of the pending regulatory proposal, Senator Eric Schmitt (R-MO) sent a letter to Secretary of Homeland Security Kristi Noem and U.S. Citizenship and Immigration Services (USCIS) Director Joseph Edlow, encouraging them to “conduct a thorough review of the OPT program to begin the process of either reforming or ending OPT.” Senator Schmitt reasoned that “OPT was created (and then expanded) by unelected bureaucrats in the executive branch, without the input or approval of Congress, circumventing the caps and limits that govern employment-based visas” and can therefore “be overhauled or ended by executive action.”

House Committee Examines E-Verify. On November 19, 2025, the U.S. House of Representatives’ Committee on Education and the Workforce’s Subcommittee on Workforce Protections held a hearing, titled, “E-Verify: Ensuring Lawful Employment in America.” As the title implies, the hearing explored ways to improve the E-Verify system while considering a nationwide mandate, with a particular focus on the construction industry. Witnesses noted that continuing errors within the E-Verify system, as well as identity theft and fraud, need to be addressed. They further suggested that E-Verify automatically send alerts when an employee no longer has work authorization, and that compliance assistance should be provided to make the system accessible to and work for small businesses. Other witnesses warned that a nationwide E-Verify mandate could have negative impacts on workers and the broader economy. The Legal Workforce Act (H.R. 251), a bill that was introduced in January 2025, would mandate E-Verify for all employers.

House Committee Advances Employment Legislation. As a follow-up to its March 25, 2025, hearing on the future of the Fair Labor Standards Act (FLSA), on November 20, 2025, the House Committee on Education and the Workforce advanced the following FLSA-related bills:

• Working Families Flexibility Act of 2025 (H.R. 2870). This bill would provide private-sector employees with the option of choosing paid time off instead of overtime pay. Republicans have introduced a companion bill in the Senate. A version of the bill passed the House of Representatives in 2017.
• Tipped Employee Protection Act (H.R. 2312). This bill would amend the FLSA to clarify the definition of “tipped employee.” Accordingly, the bill would limit the DOL’s ability to issue regulations interpreting the definition, such as the 2021 “80/20” regulation.
• Ensuring Workers Get PAID Act of 2025 (H.R. 2299). This bill would codify the DOL’s Payroll Audit Independent Determination (PAID) program, which incentivizes employers to audit their payroll and leave practices and self-report mistakes to the DOL.

The Buzz will be monitoring these bills and will provide updates should they gain any traction in Congress.

Susan B. Anthony, ‘Criminal.’ On November 18, 1872, women’s rights activist and suffragist, Susan B. Anthony, was arrested in her hometown of Rochester, New York, for voting in that year’s presidential election (in which incumbent Ulysses S. Grant defeated Horace Greeley). At the time, New York law prohibited women from voting. While not expecting to be arrested—Anthony thought she would be denied the opportunity to cast a ballot and would then file a lawsuit—she used the period between her arrest and trial date to generate publicity for the women’s suffrage movement. Anthony argued that the recently ratified 14th Amendment guaranteed women the right to vote, and she turned her attorney’s oral argument at a pretrial hearing into a pamphlet that she distributed to newspapers. Associate Supreme Court Justice Ward Hunt had responsibility over the federal court in New York and presided over the trial. On June 18, 1873, Hunt issued a directed verdict against Anthony and ordered her to pay a $100 fine, which she never paid. Anthony’s arrest and trial were galvanizing moments in the women’s suffrage movement and the broader movement for women’s rights, though the goal of securing voting rights for women in the United States was not fully realized for another forty-five–plus years, when the 19th Amendment to the U.S. Constitution was ratified in 1920, and several more decades when women of color gained the right to vote throughout the United States.

The Buzz will be on hiatus for the Thanksgiving holiday and will return on December 5, 2025.

Quick Hits

• The IRS and Treasury Department recently published guidance to clarify how employees may calculate their tax deduction for tips and overtime pay for the 2025 tax year when they have limited information.
• The guidance shows examples of common situations, such as a bartender with reported and unreported tips, a self-employed travel guide who received tips on digital payment apps, and a law enforcement employee who is paid overtime on a “work period” basis of fourteen days.

Under the 2025 budget reconciliation bill, workers who customarily and regularly receive tips can deduct up to $25,000 in tips from their income subject to federal income tax starting on January 1, 2025, through December 31, 2028. The deduction does not apply to workers earning more than $150,000 per year (for single filers) or $300,000 (for joint filers). The IRS issued a list of eligible tipped occupations, including bartenders, waitstaff, cooks, dishwashers, bakers, gambling dealers, dancers, musicians, concierges, hotel housekeeping staff, hairdressers, barbers, massage therapists, and nail technicians.

Similarly, workers can deduct up to $12,500 or $25,000, depending on their filing status, in overtime pay from their income subject to federal income tax, starting on January 1, 2025, through December 31, 2028. This deduction applies only with respect to the overtime premium required under the Fair Labor Standards Act (FLSA). 

Reporting Requirements for Employers

To enable their employees to take individual tax deductions, employers are required to report qualified overtime compensation and tips on the employees’ Forms W-2. However, the IRS granted transition relief for this reporting requirement for tax year 2025, stating that employers will not be penalized for failing to report cash tips and overtime compensation in the manner required by the latest federal budget reconciliation bill. The IRS still encourages employers to make the information available to their employees in 2025 through an online portal, additional written statements, or (in the case of overtime compensation) in Box 14 of Form W-2.

Reporting Tips

The IRS guidance released for individual taxpayers instructs them on how to use the tax information and tips data already available to them to claim the individual tax deduction for cash tips when their employer does not provide a separate reporting statement for the cash tips.

For example, a restaurant server whose 2025 Form W-2, box 7, reports $18,000 in tips can deduct a total of $18,000 in income for tax year 2025.

Meanwhile, a bartender reports $20,000 in tips on Form 4070 and $4,000 of unreported tips on Form 4137, line 4. His Form W-2 reports $20,000 in box 1 and $15,000 in box 7. He can use either the $15,000 in box 7 of Form W-2, or the $20,000 of tips reported on Form 4070 in determining the amount of qualified tips for tax year 2025. Either way, he also can include his $4,000 in unreported tips from Form 4137, line 4, in the tax deduction.

If a self-employed travel guide received $7,000 in tips through digital payment apps, he can include that amount in calculating his tax deduction for tips, if he has a log that shows each date, customer, and tip amount.

Reporting Overtime

Similarly, the IRS guidance instructs employees on how to claim the individual tax deduction for qualified overtime compensation when their employers do not provide a separate reporting statement of qualified overtime compensation. “Qualified overtime compensation” is defined as overtime pay required under Section 7 of the Fair Labor Standards Act of 1938 (FLSA)—that is, pay for hours worked in excess of forty in a workweek, at a rate not less than one and one-half times the regular rate of pay.

Individual taxpayers must first make a reasonable effort to determine whether they are considered FLSA-eligible employees, which may include asking their employers about their status under the FLSA. The IRS then instructs FLSA-eligible individual taxpayers to calculate their own amount of qualified overtime compensation based on documents, such as earnings or pay statements, invoices, or similar statements that support the determination. Employees are instructed to use the available overtime payroll information and apply an FLSA overtime premium calculation to determine qualified overtime compensation.

For example, if an employee has a pay statement at year’s end that reports the aggregate overtime compensation paid at a rate of one and one-half times earned for work in excess of forty hours in a week, the employee may calculate qualified overtime compensation by dividing the aggregate overtime compensation amount by three to determine the FLSA premium that is considered qualified overtime compensation. The aggregate overtime compensation amount would be divided by four if the employee was paid at a two-times rate.

Meanwhile, a state government employee received compensatory time at a rate of one and a half hours for each overtime hour worked. She was paid $4,500 for compensatory time off based on her overtime. She can include $1,500, or one-third of these wages, to calculate the tax deduction for overtime pay.

Next Steps

To reflect the changes in the 2025 budget reconciliation bill, the IRS is still in the process of updating Forms W-2, 1099-NEC, 1099-MISC, and 1099-K. Therefore, no changes will appear on the 2025 Form W-2, Form 1099-NEC, Form 1099-MISC, or Form 1099-K.

The IRS has encouraged employers to provide tipped employees with occupation codes and separate accountings of cash tips to help them correctly claim the deduction for qualified tips for tax year 2025. Likewise, it has encouraged employers to provide employees with a separate accounting of overtime pay, allowing them to properly claim a deduction for qualified overtime pay for tax year 2025.

However, employees now have instructions from the IRS on how to calculate their own qualified overtime compensation and cash tips that are eligible for individual income tax deductions regardless of their employers’ tax information reporting.

Ogletree Deakins’ Employment Tax Practice Group and Wage and Hour Practice Group will continue to monitor developments and will provide updates on the Employment Tax and Wage and Hour blogs as new information becomes available.

Michael K. Mahoney is a shareholder in Ogletree Deakins’ Morristown office.

Stephen Kenney is an associate in Ogletree Deakins’ Dallas 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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Employers first determine whether they must keep Occupational Safety and Health Administration (OSHA) injury and illness records and, if so, which forms apply. Most employers must maintain the OSHA Form 300 Log (“Log” or “300”), prepare an OSHA Form 301 Incident Report (301) for each recordable case, and prepare and post the OSHA Form 300A Annual Summary (300A).

Employers with ten or fewer employees in the prior year and those in industries listed in OSHA’s partial-exemption appendix are generally exempt from routine recordkeeping duties but must still report severe events and respond to government data requests, such as those from the Bureau of Labor Statistics (BLS).

Each recordable case must be entered on the Log and documented on a 301 within seven calendar days of receiving information that the case is recordable. Employers must post the 300A from February 1 through April 30 and retain the 300, 300A, and 301 for five years, updating the 300 during that period if new information comes to the employer that suggests an entry was erroneous.

Quick Hits

• Employers must determine if they need to keep OSHA injury and illness records, which include the OSHA Form 300 Log, the OSHA Form 301 Incident Report for each recordable case, and the OSHA Form 300A Annual Summary, which has to be posted from February 1 through April 30.
• Determining whether a case is recordable involves confirming an injury or illness, assessing work-relatedness, identifying if it is a new case, and applying general recording criteria such as death, days away from work, or medical treatment beyond first aid.
• Employers must ensure accurate recordkeeping, involve employees in the process, and provide access to records while maintaining privacy and data integrity, especially for special recordkeeping categories like hearing loss, needlestick injuries, and privacy concern cases.

Determining Whether a Case Is Recordable and Work-Related

Determining whether a case is recordable follows a structured sequence that begins with confirming that an injury or illness has occurred. OSHA defines “injury or illness” broadly as an “abnormal condition or disorder,” acute or chronic, that reflects an adverse change of some significance; normal end‑of‑day fatigue or mood changes are not injuries or illnesses.

Employers next determine work-relatedness under OSHA’s geographic presumption that events or exposures in the work environment are work-related unless a specific regulatory exception applies. Exceptions include symptoms arising at work that result solely from a nonwork event, voluntary wellness or recreational activities, personal tasks outside working hours, personal food consumption, self‑medication for a nonwork condition, and common colds or influenza. Work performed at home is recordable only when the injury or illness occurs while the employee is performing paid work and is directly related to the performance of that work rather than the home environment. OSHA’s website includes many answers to “frequently asked questions” and standard interpretations that help employers determine whether a work-related injury or illness occurred.

New Cases vs. Continuations of Previously Recorded Conditions

If the case is work-related, employers determine whether it is a new case rather than a continuation of a previously recorded condition. A new case exists when the employee has not previously experienced an injury or illness of the same type affecting the same body part, or when the employee had fully recovered, and a new workplace event or exposure caused the condition to recur. Chronic diseases that persist regardless of new workplace exposure are recorded once, while sensitization conditions that flare with new exposures are recorded when those exposures occur. If the case is new and work-related, employers apply the general recording criteria: death; one or more calendar days away from work; restricted work or job transfer; medical treatment beyond first aid; loss of consciousness; or a significant diagnosed injury or illness such as a punctured eardrum, a fractured rib, or a broken toe.

Medical Treatment vs. First Aid

Distinguishing medical treatment from first aid is central to consistent and compliant recordability.

Medical treatment includes the management and care of a patient to combat disease or disorder and excludes diagnostic procedures and observation-only visits. OSHA provides an exclusive list of first aid measures that are never medical treatment, regardless of who provides them.

First aid includes nonprescription medicines at nonprescription strength, cleaning and bandaging wounds, butterfly bandages and Steri‑Strips, hot or cold therapy, non‑rigid supports, temporary immobilization for transport, draining a blister, removing superficial splinters, finger guards, massage as a standalone measure, and drinking fluids for heat stress. Treatments not on the first‑aid list, such as sutures, tissue adhesives, prescription medications, physical therapy, or any wound‑closure device other than butterfly bandages or Steri‑Strips, are medical treatment. The definition of what constitutes first aid tends to shift and narrow over time, so employers are encouraged to review OSHA’s website to ensure that the current definition meets their understanding of the definition.

Counting Days Away and Days of Restriction or Transfer

Counting days away and days of restriction or transfer requires careful application of OSHA’s rules. Employers record calendar days, including weekends, holidays, and vacation days, beginning the day after the incident. If a licensed healthcare professional recommends days away or restricted duty, the employer records the recommended days even if the employee works; if the employee stays out longer than recommended, the employer records only the recommended days. The combined total of days away and days restricted or transferred is capped at 180 for each case. Where providers disagree, employers resolve the difference by selecting the most authoritative recommendation and documenting the basis for that choice. If a recordable injury happens after July 1 of any given calendar year, the count of days away, restricted, or transferred ends at the end of that calendar year.

Special Recordkeeping Categories

Special recordkeeping categories require tailored treatment. Recordable work‑related hearing loss requires both a standard threshold shift under the noise standard and an average hearing level of 25 decibels or more at 2,000, 3,000, and 4,000 hertz in the affected ear. Needlestick injuries or cuts from sharps contaminated with another person’s blood or other potentially infectious materials are recordable as injuries regardless of other criteria, and employers must update the Log if a related infection is later diagnosed. Medical removals required by specific substance standards are recorded as days away or restricted work, as applicable. Privacy-concern cases—including injuries to intimate body parts, sexual assaults, mental illnesses, HIV, hepatitis, tuberculosis, and contaminated sharps injuries—must omit the employee’s name on the Log, with a confidential list maintained to cross‑reference case numbers to names.

Employee Involvement and Access

Employers must also ensure employee involvement and access. Employers must inform employees how to report injuries and illnesses, provide access to recordkeeping forms within specified timeframes, and ensure that reporting procedures are reasonable and nonretaliatory. Employees and their personal representatives may access the Form 301 for that employee’s case, while authorized employee representatives may access the narrative “how the incident happened” portion for cases at the establishment with personal identifiers redacted. Employers must provide records to OSHA and other authorized government representatives promptly upon request.

Key Takeaways

With the definition, work‑relatedness, new‑case status, and recording criteria resolved, employers must translate those decisions into accurate entries on Forms 301, 300, and 300A.

Part II of this series walks through each form, step by step, using information commonly at hand, and explains how to maintain objectivity, privacy, and data integrity as case outcomes evolve.

Ogletree Deakins’ Workplace Safety and Health Practice Group will provide updates on the Workplace Safety and Health blog

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Quick Hits

• The EEOC issued a one‑page technical assistance document and updated its national origin landing page, both making clear that Title VII protects all workers—including Americans—and clearly stating potential business rationales do not justify national origin discrimination or anti-American bias.
• Job ads preferring visa statuses, disparate treatment in applications, assignments, or pay, and unlawful harassment or retaliation are identified as top risk and enforcement areas in the ongoing effort to protect Americans against national origin bias.
• The technical assistance document suggests employers can expect a multi‑agency enforcement approach from the EEOC, the Department of Justice, and the Department of Labor.

Understanding the EEOC’s Action

Title VII prohibits using protected characteristics as a factor in employment decisions unless narrow exceptions exist, such as a bona fide occupational qualification. Title VII’s prohibition on national origin includes treating applicants or employees unfavorably or favorably because they are from a particular country or part of the world, due to ethnicity or accent, or because they appear to be of a certain ethnic background, even if that perception is incorrect. The EEOC’s technical assistance document makes plain that preferences for foreign workers, including preferences tied to H1-B status, can constitute unlawful national origin discrimination when they result in disfavored treatment of American workers.

Title VII bars discrimination across all aspects of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, benefits, and any other term or condition of employment. The technical assistance materials highlight several recurring risk areas:

• Job advertisements that express preferences or requirements based on national origin or visa status (e.g., “H‑1B preferred” or “H‑1B only”) are unlawful.
• Disparate treatment can arise where employers make it meaningfully harder for U.S. workers to apply or advance compared to foreign visa holders, including through more burdensome application processes or materially different criteria.
• Pay discrimination includes paying visa guest workers less than similarly situated American workers without legitimate nondiscriminatory reasons.
• Harassment based on national origin is unlawful when sufficiently severe or frequent to create a hostile work environment, or when it results in adverse employment actions; harassment can be perpetrated by supervisors, coworkers, or even customers.
• Retaliation is prohibited when employers take adverse action because a worker opposed discrimination, participated in an investigation, or filed a charge with the EEOC.

The EEOC reiterates that common business justifications do not validate national origin discrimination. Customer or client preference, perceived productivity differences, “work ethic” stereotypes, or lower labor costs—including practices tied to off‑the‑books pay or misuses of visa wage requirements—cannot lawfully support employment decisions that favor one national origin group over another or that prefer foreign workers over American workers.

Next Steps

Employers may consider promptly assessing policies and practices that may favor workers of particular national origins or visa statuses over American workers. This includes reviewing recruiting and advertising content, application, and selection processes, pay practices for similarly situated workers, and workplace conduct expectations. Training managers and recruiters on Title VII’s even‑handed protections, auditing for disparate treatment indicators, and documenting neutral, job‑related criteria for employment decisions are important steps to mitigate risk. Where immigration‑related processes intersect with employment decisions, ensure coordination with all decisionmakers to avoid policies that create national origin–based disparities.

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

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

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Quick Hits

• President Trump has nominated labor and employment M. Carter Crow as the new general counsel of the EEOC, a position that has been vacant since January 2025.
• Crow’s Senate confirmation process will likely take several weeks to months, but if confirmed, Crow would be positioned to carry out the Trump administration’s discrimination and harassment enforcement priorities.
• The nomination comes weeks after the U.S. Senate confirmed another commissioner, restoring the EEOC’s quorum and enabling it to engage in rulemaking and emphasize systemic enforcement strategies.

On November 18, 2025, President Trump nominated Crow, currently the head of the global employment and labor practice at a multinational law firm, to the U.S. Senate for confirmation as the EEOC general counsel. The nomination was received by the Senate and referred to the U.S. Senate Committee on Health, Education, Labor, and Pensions (HELP), according to the Senate website.

The EEOC general counsel position has been open since January 2025, when President Trump discharged former EEOC general counsel Karla Gilbride, a Biden appointee, in the middle of her four-year term. Former acting general counsel Andrew Rogers was confirmed as administrator of the U.S. Department of Labor’s (DOL) Wage and Hour Division last month. Catherine Eschbach, who was sworn in as EEOC principal deputy general counsel in September, a newly created position, is currently performing the duties of the general counsel.

New Enforcement Priorities

If confirmed by the Senate, Crow would enjoy more institutional authority within the Commission than former Acting General Counsel Rogers and Principal Deputy General Counsel Eshbach, who did not have the Senate’s imprimatur. In the past, a Senate-confirmed general counsel was free to pursue his or her own enforcement priorities. However, in this administration, the EEOC is viewed as an executive branch agency, rather than an independent one, so Crow can be expected to pursue an enforcement agenda that aligns closely with both President Trump’s and EEOC Chair Andrea Lucas’s priorities. This includes scrutiny of employers’ diversity, equity, and inclusion (DEI) practices, with a focus on deemphasizing disparate impact investigations and an emphasis on discrimination based on national origin or religion, particularly alleged anti-American and anti-Christian bias.

Renewed Quorum

The new EEOC general counsel nomination comes weeks after the U.S. Senate confirmed fellow Trump nominee Brittany Bull Panuccio to serve as a commissioner of the EEOC on October 7, 2025. Panuccio’s confirmation restored a quorum of three commissioners at the agency, with two being Republican appointees, including Andrea Lucas, whom the president renominated to a new four-year term and later elevated from acting chair of the EEOC to full chair.

The restoration of a quorum provides the EEOC with authority to engage in rulemaking and policymaking and issue certain guidance to further the administration’s priorities. Recent remarks by EEOC Chair Andrea Lucas and Commissioner Kalpana Kotagal, combined with the Trump administration’s budget justification for the EEOC, suggest that the agency will focus on systemic and pattern-or-practice litigation. Additionally, the EEOC’s congressional budget justification from May 2025 confirmed such a strategy.

Next Steps

Crow’s nomination marks the beginning of the sometimes arduous Senate confirmation process. The Senate HELP Committee is likely to hold a hearing in the coming weeks, where senators will have an opportunity to question Crow about his qualifications for the job and plans for the role. Committee members will then vote on whether to approve his nomination for a full vote on the Senate floor.

Overall, the process is likely to take several weeks, possibly even months. However, beginning in September of this year, Senate Majority Leader John Thune (R-SD) introduced a new en banc voting strategy for presidential nominees, which could allow Crow to be confirmed in a timelier manner, perhaps as soon as early 2026. In the meantime, questions remain about the role Eschbach will play as deputy general counsel once a general counsel is confirmed.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance and Workforce Analytics and Compliance practice groups will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Governmental Affairs, Leaves of Absence, and Workforce Analytics and Compliance blogs.

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

• The U.S. Department of Education’s updated IPEDS data collection proposal clarifies that ACTS would only apply to selective four-year institutions.
• Institutions that both admit 100 percent of applicants and award no non-need-based aid in a given collection year would be exempt from the data collection for that year.
• The Education Department underscores the ACT’s purpose to identify race-based preferencing in admissions and non-need-based aid practices, signaling potential risk-based Title VI of the Civil Rights Act of 1964 scrutiny.
• Public comments are due December 15, 2025.

The Education Department’s notice proposes that ACTS would apply to four-year selective institutions and explicitly exempt otherwise eligible institutions that both admit 100 percent of applicants and do not award non‑need‑based aid for a given collection year. The changes stem from the public response to the Education Department’s Direct Questions in the prior sixty-day notice associated with the ACTS supplement, issued in August 2025. Comments on that proposal closed October 14, 2025.

The Education Department reiterated that ACTS is intended to collect information indicating whether institutions “are using race‑based preferencing in admissions,” citing the August 7, 2025, presidential memorandum directing expansion of required IPEDS reporting and the Education Department secretary’s same‑day directive to initiate changes in the 2025–26 school year.

Selective institutions—and competitive graduate and professional programs within broader institutions—should anticipate heightened transparency expectations around admissions and scholarship practices, potential risk‑based Title VI of the Civil Rights Act of 1964 reviews tied to the proposed data requirements, and closer scrutiny of non‑need‑based aid. The Education Department’s rationale references recent directives, including the August 7, 2025, presidential memorandum and the secretary’s same‑day directive to initiate changes in the 2025–26 school year, reinforcing the enforcement‑oriented posture of the proposal.

Next Steps

Selective four-year institutions should anticipate continued emphasis on admissions and scholarship transparency, potential risk‑based Title VI reviews anchored in the proposed new data requirements, and closer scrutiny of non‑need‑based aid practices. Institutions that have mapped data availability, implemented privacy controls, clarified program-level selectivity, and conducted privileged review of admissions and aid data across the reporting periods will be better prepared to adjust to whatever ACTS ultimately requires and to withstand heightened Education Department scrutiny of admissions and scholarship practices.

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

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

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Quick Hits

• In 2026, Germany’s Social Security Calculation Parameters Regulation will come into force, raising the compulsory insurance threshold to €77,400 annually.
• The contribution assessment ceiling for statutory health and long-term care insurance will increase to €69,750 per year, reflecting positive income trends.
• The contribution assessment ceiling in the general statutory pension insurance scheme will rise to €101,400 annually, continuing the uniformity between the new and old federal states.

1. Compulsory Insurance Limit in Statutory Health Insurance

The annual income ceiling for statutory health insurance, also known as the compulsory insurance limit, will rise to €77,400 (2025: €73,800) per year or €6,450 (2025: €6,150) per month. The compulsory insurance limit is decisive for whether employees can opt for private health insurance.

2. Contribution Assessment Ceiling in Statutory Health and Long-Term Care Insurance

The contribution assessment ceiling for statutory health and long-term care insurance will rise to €69,750 (2025: €66,150) per year or €5,812.50 (2025: €5,512.50) per month. This ceiling sets the maximum income level that is subject to insurance contributions. Income exceeding this limit is not subject to contributions.

3. Contribution Assessment Ceiling in Pension Insurance

The contribution assessment ceiling for the general statutory pension insurance will uniformly be raised to €101,400 per year or €8,450 per month. This ceiling determines the maximum income considered for calculating pension insurance contributions. Income above this limit is also exempt from contributions.

Key Takeaways

The annual adjustment of social insurance calculation parameters in line with income trends is essential for the financing of social security systems. However, the increase in the contribution assessment ceilings will result in a greater financial burden for both employers and high-earning employees.

Ogletree Deakins’ Berlin and Munich offices will continue to monitor developments and will post updates on the Cross-Border, Employee Benefits and Executive Compensation, and Germany blogs as additional information becomes available.

Dr. Ulrike Conradi is the managing partner in the Berlin and Munich offices of Ogletree Deakins.

Pauline von Stechow is a law clerk in the Berlin office of Ogletree Deakins.

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Quick Hits

• On October 30, 2025, the Federal Labor Court of Germany ruled that probationary periods in fixed-term contracts must be proportionate to the duration and type of work, with no rigid limits.
• The Federal Labor Court upheld a four-month probationary period for a one-year fixed-term contract, considering it is proportionate due to a sixteen-week training plan.
• The Federal Labor Court clarified that even if a probationary period is deemed inadmissible, the six-month waiting period after which the termination restrictions under the German Termination Protection Act which remains unaffected.
  

Background

The employee was hired as an “Advisor I, Customer Service,” on a fixed-term contract for one year. The parties had agreed on a probationary period of four months in the employment contract, during which the employment relationship could be terminated with two weeks’ notice. The employer terminated the employment relationship during the probationary period in accordance with the two-week notice period. The employer had drawn up a detailed training plan with three different phases lasting a total of sixteen weeks.

The employee filed an action for unfair dismissal before the Berlin Labor Court. She argued that the probationary period was disproportionately long, which is why she could only be dismissed in compliance with the statutory notice period under Section 622 (1) of the German Civil Code (BGB) (i.e., four weeks to the fifteenth or end of a month). In any case, the termination required social justification because the waiting period under Section 1 (1) of the German Termination Protection Act (KSchG) could only be as long as a permissible agreed proportionate probationary period, which in this case was to be set at three months.

The Berlin Labor Court considered the agreed probationary period to be disproportionate and upheld the claim in this respect; otherwise, the claim was dismissed. The Berlin-Brandenburg Regional Labor Court (LAG) also considered the four-month probationary period to be disproportionate, as it exceeded the “standard value” of 25 percent of the fixed-term period. The BAG considered the termination to be valid in compliance with the two weeks’ notice period during the probationary period.

Decision of the BAG

The employee’s appeal, which claimed that the termination was completely invalid, was unsuccessful. The employer’s cross-appeal was successful, and the BAG dismissed the action in its entirety.

In the opinion of the BAG, there is no rigid rule of 25 percent of the fixed-term period for the duration of the probationary period in fixed-term employment relationships. Rather, the proportionality of the probationary period depends on an overall assessment of the circumstances of the individual case, which must take into account, in particular, the nature of the work and the expected duration of the fixed term. The BAG considered a probationary period of four months to be proportionate in view of the sixteen-week training plan drawn up by the employer.

In addition, the BAG clarified that even if a disproportionately long and therefore inadmissible probationary period is agreed, the six-month waiting period under Section 1 (1) of the German Termination Protection Act (KSchG) remains unaffected, even in the case of fixed-term employment contracts. This means that a fixed-term employment relationship can be terminated within the first six months without social justification within the meaning of the KSchG, even if the probationary period is inadmissible.

Outlook

The BAG’s decision comes as no surprise, even if practitioners would prefer fixed rules for the sake of legal certainty. However, such rules are not laid down in the law, so that, as provided for in the law, it depends on the individual case, in particular the duration of the fixed term and the type of work performed. As an initial guide, the 25 percent mark can certainly continue to be used, but it must be adjusted downwards (e.g., for very simple activities that require no or only a short training period) or upwards (more complex activities, longer training periods) depending on the circumstances of the individual case. As a result, the risk for employers is also manageable, as no reason for termination is required before the expiration of the six-month waiting period within the meaning of Section 1 (1) KSchG.

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

Dr. Ulrike Conradi is the managing partner in the Berlin and Munich offices of Ogletree Deakins.

Teodora Ghinoiu is a law clerk in the Berlin office of Ogletree Deakins.

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Quick Hits

• The elective deferral limit for 401(k) and 403(b) plans will increase to $24,500 for 2026, and the catch-up contribution limit will increase to $8,000 for most employees but will remain at $11,250 for employees who achieve ages sixty to sixty-three during 2026.
• The limitation on compensation that can be taken into account under tax-qualified retirement plans will increase to $360,000 for 2026.
• The threshold for determining highly compensated employees will remain at $160,000.
• In a surprising development, the threshold for determining highly paid individuals for purposes of the Roth catch-up contribution requirement will increase from $145,000 to $150,000 for the 2025 lookback year.

The 2026 adjustments were not out of line with those made for the 2025 calendar year. The increases shown below are effective January 1, 2026.

The IRS makes cost-of-living adjustments annually in response to inflation. Each limit is rounded to a whole number, generally the nearest $500 or $1,000, as prescribed by law.

Ogletree Deakins’ Employee Benefits and Executive Compensation Practice Group and Employee Tax Practice Group will continue to monitor developments and provide updates on the Employee Benefits and Executive Compensation and Employment Tax blogs as new information becomes available.

Katrina M. Clingerman is a shareholder in the Indianapolis office of Ogletree Deakins.

David S. Rosner is a shareholder in the Washington office of Ogletree Deakins.

Tracy L. Mounts is a paralegal in the Indianapolis office of Ogletree Deakins.

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Quick Hits

• Starting no later than January 3, 2028, the FAMLI program will provide most Maryland employees up to twelve weeks of paid leave for certain family and medical reasons, with a possible additional twelve weeks for parental bonding, per benefit year.
• After several legislative delays to the program’s effective date, the MDOL has now reissued proposed regulations to implement the FAMLI program.
• The proposed Claims chapter offers additional key definitions, recognizes qualifying events, identifies required documentation, sets deadlines, calculates duration and amounts of benefits, mandates notices to employees and employers, coordinates FAMLI with other benefits, and addresses overpayments and fraud (albeit briefly).

Background on the Law and the Proposed Regulations

In 2022, the Maryland General Assembly enacted the state’s Family and Medical Leave Insurance (FAMLI) program. The program is designed to provide most Maryland employees with up to twenty-four weeks of partial wage replacement within a twelve-month period—consisting of up to twelve weeks of paid family and medical leave, with the potential for an additional twelve weeks of parental leave. We detailed the requirements of the law in our article, Maryland’s FAMLI Program, Part I: An Overview of the Law.

Following several legislatively mandated delays, including during the most recent session, employer and employee contributions to finance the program are slated to begin on January 1, 2027, with benefits commencing no later than January 3, 2028.

We analyzed the MDOL’s prior version of its proposed regulations on the claims process in our article, Maryland’s FAMLI Program, Part III: Claims and Dispute Resolution. While the current proposal aligns closely with the earlier version, several meaningful updates warrant attention.

Key Definitions and Qualifying Events

The proposed regulations generally reiterate several important definitions, including the following:

• “Alternative FAMLI purpose leave” (AFPL) means employer-provided leave intended for the same reasons as FAMLI (e.g., medical leave, family leave, qualifying exigency leave) and now also includes leave under a disability policy.
• “General purpose leave” means other employer-provided leave (e.g., paid time off, vacation, personal leave, or sick leave).
• “Fraud” means a misrepresentation or concealment of a material fact that results in benefits paid to a claimant not qualified for such payment.
• “Complete claim application” means an application with all required supporting documentation, including the employer’s response and any investigation.
• “Good cause” for late filing is narrowly defined to cover unanticipated incapacity due to a serious health condition, documented inability to access filing systems, or demonstrated failure of the employer to provide notice.

Events that qualify for FAMLI benefits are essentially the same as those for the federal Family and Medical Leave Act: the employee’s own serious health condition; a family member’s serious health condition (although the definition of a family member is much broader under state law than the FMLA); parental bonding following the birth, adoption, or foster placement of a child; caring for an injured or ill military service member who is next of kin; and qualifying exigencies arising from the deployment of a service member who is the employee’s family member.

Applications, Supporting Documentation, and Claim Updates

The proposed rules would allow eligible employees to file an application for benefits up to sixty days before and sixty days after taking leave that qualifies for FAMLI benefits. This deadline may be waived for good cause up to one year from the commencement of the leave. The proposed regulations detail the information required to support an application, including proof of relationship for bonding and caregiving, as well as certifications or other documentation for the above-listed qualifying events. A new proposed documentation requirement involves establishing the service member’s status as a member or veteran of the uniformed services. The MDOL’s FAMLI Division may require attestations as to the truth of the application and that there are no disqualifying criteria.

Employers would have five business days to respond to a notice of a claim. In the absence of a timely response, the application would be deemed complete; if eligibility is challenged, the FAMLI Division or EPIP would investigate, after which the claim would be treated as complete. Newly added, the FAMLI Division could also request supplemental employer data. In such a case, if benefits were retroactively approved and the supplemental data were disqualifying, any benefits provided would be considered an overpayment, and job and anti-retaliation protections would not apply.

Notably, if benefits are approved and an employer submits disqualifying information after the five-day window, the employee would be allowed to retain any benefits received, but further benefits would cease. Job and anti-retaliation protections would continue to apply until benefits are revoked, however.

Employees would be required to update material information within ten days or as soon as practicable if there is good cause, including changes to the basis, dates, duration, or receipt of workers’ compensation or unemployment insurance benefits. Failure to update could result in a delay, overpayment, underpayment, or denial of benefits. Claims may be withdrawn, and if leave has already begun, only the actual leave taken would count against the employee’s FAMLI balance for the application year.

Duration of Leave

The proposed regulations would allow employees to receive up to twelve weeks of leave and benefits per employer per application year, with the potential for an additional twelve weeks where an initial period of the employee’s own medical leave is followed by bonding leave (or vice versa) within the same year.

Bonding leave would have to be taken within twelve months of birth or placement; pre-placement time for court, agency, medical, counseling, and travel activities would be covered when supported by required documentation.

A care provider would be required to document the amount of time required for the serious health condition of the employee, the employee’s family member, or a service member. Notably, if the family member dies, benefits would continue until seven days after the death or the previously approved end date, whichever is earlier. Claimants would be required to provide notice of the date of death within seventy-two hours. In essence, the proposed regulations provide for bereavement leave, which is not a statutory reason under FAMLI.

Finally, other documentation may be required to substantiate the time period required for qualifying exigency reasons.

Benefit Calculations: Continuous and Intermittent Leave

The proposal prescribes a two-tier wage replacement formula for continuous leave. If the claimant’s average weekly wage is 65 percent or less of the state average weekly wage, benefits would equal 90 percent of the claimant’s wage. Amounts above that threshold would be replaced at 50 percent, up to the maximum weekly benefit.

For intermittent leave, the proposed regulations set out a more complex calculation than before: one “week” of benefits is determined by dividing average hours worked per week during the highest earning of the previous four calendar quarters by thirteen, and the hourly rate is derived by dividing the weekly benefit by those hours. Benefits would then be paid for the actual hours of intermittent leave taken.

Intermittent Leave Requests

Claimants approved for intermittent leave would be required to submit benefit requests within five business days of taking leave unless they demonstrate good cause. Claimants would be prohibited from taking intermittent leave in blocks of fewer than four hours unless the scheduled shift was shorter. If the leave were to significantly (the addition of “significantly” is new) exceed the certified amount or frequency, benefits would not be paid unless an updated certification was received. Newly added, intermittent approvals would expire after one year, and a new claim application would be required if the employee continues to require leave.

Notices: Employer, Employee, and Plan Obligations

Employers would be required to provide FAMLI notice six months before benefits commence, at hire, annually, thirty days before any changes to the employer’s FAMLI procedures or plan, and whenever the employer knows a leave may be FAMLI-eligible. The proposed rules would require the FAMLI Division to publish prescribed forms. Employers may obtain an acknowledgment of receipt, which would confirm notification.

Employees would be required to provide thirty days’ notice of foreseeable leave or as soon as practicable for unforeseeable leave. Employers may waive this requirement, and would be deemed to have waived it if they do not invoke it upon notification of the claim or they fail to inform employees that notice is required. For intermittent leave, employees would have to make reasonable efforts to schedule it in a manner that does not cause significant difficulty or expense (a tighter standard than the previous version’s “does not unduly disrupt the employer’s operations”), and they would also have to provide reasonable and practicable prior notice of reasons, dates, and duration. Employers may apply established absence policies where recipients do not provide reasonable notice of their intermittent leave, but they would have to notify the FAMLI Division before (rather than the prior version’s “when”) taking action. An employer may also require additional information when an employee’s use of intermittent leave is inconsistent with their FAMLI leave approval.

Plans (whether the state or an equivalent private insurance plan (EPIP)) would be required to notify employees at key points, including when: an application is submitted, an application is incomplete, an employer is notified, the employer responds, their application is approved (with benefit amounts and leave periods, intermittent leave parameters, and appeal rights), or their application is denied (with reasons, appeals rights, factual basis or issues involved, the applicable statutory provisions, reconsideration rights and timing). Plans would also have to notify employers when: an application is submitted, an application is complete, a claims determination is made, reconsideration is filed, and benefits are changed.

Coordination With Other Benefits

The proposed regulations would allow reduction of FAMLI eligibility by an employee’s FMLA use if the leave also qualified for FAMLI, the employer provided timely FAMLI notice, and the employee did not apply. Reduction of FAMLI eligibility would also be allowed where an employer provided advance written notice of requiring concurrent use of AFPL that is paid, not accrued, specific to a FAMLI purpose, and not conditioned on exhausting other leave, and the employee failed to apply for FAMLI. Under the proposed regulations, if FAMLI is used concurrently with AFPL, FAMLI is primary, and AFPL may supplement up to 100 percent of the employee’s average weekly wage. The employer then would be permitted to deduct the full amount of time taken from the employee’s AFPL balance, even if only partial wage replacement was received.

General-purpose paid leave may supplement FAMLI only by mutual written agreement; however, paid sick leave may be used before FAMLI benefits without such an agreement. Individuals generally cannot receive FAMLI while receiving unemployment insurance or workers’ compensation wage replacement, except for permanent partial disability benefits.

Payments, Overpayments, and Fraud

The proposed rules would require the first benefit payment to be issued within five business days after approval of a complete claim or the start of leave, whichever is later, with subsequent payments at least biweekly. If there is an overpayment, the FAMLI Division would provide written notice to the employee, with a thirty-day window for repayment or a waiver request. Repayment may be sought for erroneous payments, an employee’s willful misrepresentation, or subsequent rejection of the claim. Waivers may be granted where there was no knowing false statement, nondisclosure, misrepresentation, or where repayment would be inequitable or administratively inefficient. If a waiver is denied, recipients may seek reconsideration.

If fraud is found after benefits were approved, paid benefits would be treated as overpayments, and job and anti-retaliation protections would not apply.

Special EPIP Provisions

As previously noted, EPIPs would have to comply with any applicable Maryland Insurance Administration requirements. The proposed regulations make clear that the Maryland Insurance Administration’s procedures would control where they differ from the FAMLI regulations.

Continuing Concerns for Employers

The proposed five-business-day employer response window to a claim notice is quite short, and a failure to respond would result in the claim being treated as complete and moving to determination on a ten-business-day clock. While the chapter contemplates investigations and late employer responses, job protection would attach upon benefit approval unless and until benefits are revoked, underscoring the importance of rapid, accurate responses.

In addition, the provision for post-death benefits would effectively provide bereavement leave that is not explicitly contemplated in the law.

Furthermore, the scheduling of intermittent leave would be subject to a more employee-friendly standard, and employers would not be permitted to hold employees accountable for failure to provide notice of intermittent leave until after notifying the FAMLI Division—an unnecessary complication and delay.

Finally, the proposed fraud provisions are not particularly detailed or robust, meaning that employers might need to continue the employment of employees that they know to have engaged in FAMLI fraud unless and until the FAMLI Division weighs in.

Next Steps

Interested parties may submit comments on Chapter 4 of the proposed regulations through December 1, 2025, to the FAMLI Division: FAMLI.policy@maryland.gov. Following the comment period, the FAMLI Division may make additional changes to the regulations before issuing them in final form.

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

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on state family and medical leave laws, including Maryland’s FAMLI program. Premium-level subscribers have access to comprehensive Law Summaries and updated policies; 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.

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