Quick Hits

• On November 4, 2026, the DOL OIG announced an audit of the effectiveness of OSHA’s actions to address workplace violence.
• It is the OIG’s first review of the issue since a September 2001 report found OSHA could do more on guidance, outreach, and recordkeeping.
• OSHA still has no workplace violence standard and relies on the General Duty Clause, so the audit’s findings could shape future enforcement and rulemaking.

Background

The OIG’s fiscal year (FY) 2026 audit workplan previewed the audit, noting that 849 of the 5,486 workplace fatalities recorded in 2022 involved intentional injury by another person. The OIG’s 2001 report recommended that OSHA clarify its use of the General Duty Clause for workplace violence, assess its outreach, and track workplace violence data.

Twenty-five years later, OSHA’s healthcare and social assistance rulemaking remains a long-term action on the regulatory agenda. OSHA has instead historically cited employers under the General Duty Clause, an approach that has been upheld by courts.

What It Could Mean for Employers

Although the audit itself does not impose new obligations on employers, its findings could influence OSHA’s future approach to workplace violence prevention. Potential outcomes include:

• Increased enforcement: OSHA could place greater emphasis on assessing workplace violence hazards during inspections and investigations, particularly in higher-risk industries.
• Expanded guidance: OSHA may update its workplace violence prevention guidance, including recommendations concerning hazard assessments, employee training, and incident response.
• Renewed rulemaking efforts: Depending on the audit’s findings, OSHA could face additional pressure to advance a federal workplace violence prevention standard, particularly for healthcare and social assistance employers.

For multistate employers, the audit also serves as a reminder that workplace violence prevention obligations vary significantly by jurisdiction. Employers operating in states such as California must continue complying with applicable state-specific requirements, regardless of developments at the federal level.

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

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Quick Hits

• On October 21, 2026, the Court of Appeals of Oregon held in Ayala v. Culbertsons LLC, held that the state’s wage law permits payroll deductions to repay employee-requested wage advances when the arrangement benefits both the employee and employer.
• The court upheld deductions totaling $1,000 because the employee received requested, interest-free advances before earning the wages and agreed in writing to specific repayment deductions.
• Oregon employers may want to document requested advances and repayment authorizations, accurately report deductions, avoid fees, and refrain from deducting repayment amounts from final wages.

The court reached this result even though the deductions ultimately paid the employer back. The decision answers a question Oregon’s appellate courts had not directly addressed: under the state’s wage statute at ORS 652.610(3)(b), a deduction made “for the employee’s benefit” does not have to be solely for the employee’s benefit.

Background

During Anthony Ayala’s employment, his employer, Culbertsons LLC, advanced him money several times before the pay periods to which the advances were related. Each advance was documented in an “Official Employee Loan Agreement,” which acknowledged Ayala’s debt and authorized specific future payroll deductions to repay it. Culbertsons deducted the agreed amounts from later paychecks, recorded the deductions in its books and on Ayala’s paystubs, and charged no interest or fees.

The eleven deductions totaled $1,000. None came from Ayala’s final paycheck or were taken when his employment ended.

Ayala sued, arguing that the deductions violated ORS 652.610(3) because they were not made for his benefit, or at least not for his sole benefit. The trial court denied his motion for summary judgment and granted Culbertsons’s cross-motion. The employee appealed.

The Court’s Decision

The Court of Appeals affirmed, with Judge James C. Egan writing the opinion. The court found that Ayala received a direct benefit from the overall arrangement. It pointed to these facts:

• Ayala requested the advances.
• Culbertsons had no contractual obligation to provide them.
• Ayala was not otherwise entitled to the funds under his employment agreement.
• The advances gave him immediate access to money he had not yet earned.
• He would not have received the advances without agreeing to repay them through payroll deductions.
• No deductions were taken from wages due when his employment ended.
• Culbertsons charged no interest or fees.

The court stated that its decision was consistent with nonbinding federal case law that read ORS 652.610(3)(b) to allow arrangements benefitting both employers and employees, and that distinguished statutory “for the employee’s benefit” language from statutes that expressly required a deduction to be solely for the employee’s benefit.

The court also rejected the idea that the deductions failed the test because they returned money to the employer. The court explained, “The question under subsection (3)(b) is whether the deduction was for the employee’s benefit.” The undisputed facts showed that the employee got the money before any deduction was made. They also showed he would not have received it without agreeing to the repayment arrangement.

Key Takeaways

Ayala gives Oregon employers appellate authority for a point that had been murky. A deduction can satisfy ORS 652.610(3)(b) even when it also benefits the employer. The decision also confirms that payroll advances can be repaid through paycheck deductions if they are carefully documented.

The court’s reasoning relied heavily on specific facts, so employers may want to consider the following:

• documenting each advance in a written agreement that acknowledges the debt and authorizes specific repayment deductions,
• making sure the employee requests the advance,
• avoiding charging interest or fees,
• recording deductions accurately in payroll records and on paystubs, and
• avoiding taking repayment from final wages owed at termination.

Ogletree Deakins’ Portland (OR) office and Wage and Hour Practice Group will continue to monitor developments and will provide updates on the Oregon and Wage and Hour blogs.

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Quick Hits

• The New Jersey Superior Court Appellate Division recently ruled that USERRA does not preempt the state’s more expansive protections for military leave.
• In this case, the Atlantic City Police Department fired a police officer after he exceeded USERRA’s five-year limit for protected military leave.
• The court rejected the city’s contention that New Jersey law stops protecting a servicemember after five years of leave.

USERRA provides a cumulative total of up to five years of job-protected military leave with one civilian employer when servicemembers are called to duty. USERRA supersedes any local law, state law, or employment contract that would reduce the time or benefits provided under USERRA, and its regulations specify that it establishes a floor, not a ceiling, for the rights of those it protects.

A recent New Jersey case highlights the importance of USERRA’s deference to more expansive state law protections for servicemembers. New Jersey’s military leave laws are more expansive than USERRA and require that employees of state entities who are servicemembers “shall be entitled, in addition to pay received, if any, as (servicemembers), to leave of absence from his or her respective duties without loss of pay or time on all days during which he or she shall be engaged in any period of state or federal active duty.” The same statute clarifies that any such leave of absence beyond ninety days may be unpaid.

In In re: McDevitt, the New Jersey Superior Court Appellate Division held that the more expansive New Jersey law was controlling.

Background on the Case

Atlantic City Police Officer Brian McDevitt accrued 1,982 days (or approximately 5.43 years) of military leave while employed by the Atlantic City Police Department. During McDevitt’s deployments, the city paid him for up to ninety workdays of military leave per calendar year and, under city policy, paid him the difference between his military pay and his regular police pay for the rest of each deployment. During one of McDevitt’s deployments in December 2022, the city informed him that his military orders exceeded the five-year cumulative service limit under USERRA, and that he must return to work, resign, or retire by February 1, 2023.

McDevitt responded that his continued leave was protected under New Jersey law and that he intended to return to the police department after completing his deployment. On May 2, 2023, the city served him with a letter seeking his removal and charging him with insubordination, conduct unbecoming a public employee, and job abandonment. The city terminated McDevitt’s employment on January 26, 2024.

McDevitt appealed to the New Jersey Civil Service Commission, which overturned the Atlantic City Police Department’s decision and ordered his reinstatement with mitigated back pay, benefits, seniority, and counsel fees. The city appealed to the Appellate Division of the Superior Court of New Jersey. It argued that USERRA’s five-year cumulative service limit preempts federal, state, and local laws and that New Jersey’s military leave statute does not provide for unlimited cumulative service that supersedes USERRA’s five-year limit. In other words, the city argued that New Jersey law does not protect a servicemember from discharge once that employee has passed USERRA’s five-year minimum.

Court’s Ruling

The Appellate Division affirmed the commission’s decision “in all respects.” The court held that USERRA does not preempt state laws that afford greater protection than USERRA’s five-year cumulative service limit. The court rejected the city’s preemption argument based on USERRA’s plain language that it specifically does not supersede, nullify, or diminish any state law that establishes rights or benefits for servicemembers greater than those provided by USERRA.

The court also rejected the city’s argument that New Jersey’s military leave law stops protecting a servicemember after five years of leave. It noted that N.J.S.A. 38A:4-4 “expresses no temporal limitation on the length of military leave it protects” and provides only that leave beyond ninety workdays per calendar year is unpaid.

The court stopped short of deciding whether New Jersey law confers “unbounded leave and a perpetual right of reemployment.” Instead, it resolved only whether the police officer’s additional 0.43 years of leave beyond USERRA’s five-year minimum justified his discharge for “insubordination” and “conduct unbecoming a public employee.” The court called those characterizations of his absence while serving the country “inapt” and “antithetical to the declared purposes of our federal and state military leave laws.”

New Jersey state law allows servicemembers up to ninety days within which to apply for private reemployment after completion of service, regardless of the length of such service. By contrast, USERRA only allows the same ninety-day allowance if the servicemember’s period of service lasts for more than 180 days. Otherwise, USERRA requires a servicemember to report to the next regularly scheduled work period if the period of service is thirty days or less, or within fourteen days if the period of service is between thirty-one and 180 days.

Next Steps

Employers may wish to assess their policies and practices affecting servicemembers to ensure compliance with USERRA and state military leave laws. New Jersey state law may be open-ended as to its cumulative service limit for servicemembers employed by public entities.

USERRA’s five-year cumulative service limit is also not as straightforward as it may appear, since there are numerous statutory exceptions for certain types of service. Other state law requirements may apply.

Ogletree Deakins’ Military Workforce Practice Group will continue to monitor developments and will post updates on the Leaves of Absence, Military Workforce, and New Jersey blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on state and federal laws around Military Leave, including New Jersey Military Leave. Premium-level subscribers have access to comprehensive law summaries, policies, 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.

Michael J. Nacchio is a shareholder in Ogletree Deakins’ Morristown office.

Alysonne O. Hatfield is of counsel in Ogletree Deakins’ Birmingham office.

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

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Quick Hits

• The Fourth Circuit held that Title VII’s Section 702 religious employer exemption is limited to religious discrimination and accommodation claims and does not shield a religious organization from sex, race, or national origin discrimination claims, even when the employment decision is motivated by sincerely held religious beliefs.
• For lay employees who do not perform spiritual functions and are therefore not covered by the exemption for ministerial employees, the majority held that the church autonomy doctrine does not displace federal and state antidiscrimination law.
• The court held that the Religious Freedom Restoration Act (RFRA) cannot be raised as a defense in a lawsuit between private parties, even if the government intervenes in the litigation.
• Religious employers in the Fourth Circuit—in Maryland, Virginia, North Carolina, South Carolina, and West Virginia—may want to review benefits eligibility rules and other employment policies that draw religiously based distinctions affecting nonministerial employees.

In Doe v. Catholic Relief Services, a split three-judge Fourth Circuit panel rejected, 2–1, an employer’s religiously based statutory and constitutional defenses to Title VII and MFEPA sex discrimination claims. In the majority’s view, the employer was seeking “extremely broad and nearly unbounded immunity” arising from its religious status that “is not required by any statute or constitutional provision.” A lengthy dissent described the decision as “stunningly restrictive of religious freedom.” The sharp split suggests the issues may receive further review.

Background

Catholic Relief Services (CRS) is a nonprofit social services agency affiliated with the Catholic Church and governed by the United States Conference of Catholic Bishops. CRS has more than 8,000 employees. It does not require them to adhere to the Catholic faith except in “representational” positions. The plaintiff, an IT and data analyst, told a CRS recruiter in 2016 that he was gay and married. He asked whether his husband would be covered by dependent health benefits, and the recruiter said he would be.

Five months after the plaintiff enrolled his husband, CRS told him the enrollment was a mistake. CRS explained that extending dependent benefits to his husband conflicted with its religious values. CRS offered an alternative arrangement that included transitional coverage and a raise to offset most out-of-pocket costs. The plaintiff declined, and CRS terminated his husband’s coverage.

The plaintiff employee sued for sex discrimination under Title VII and the Equal Pay Act, and for sexual orientation discrimination under MFEPA. The district court granted summary judgment to the plaintiff as to liability under Title VII and the Equal Pay Act. It entered judgment for him on his MFEPA claim after a bench trial.

The Majority Opinion

On appeal, CRS raised multiple defenses arising from various statutes as well as the First Amendment’s Religion Clauses, including the following: that it was subject to the religious employer exemption under Title VII and MFEPA; that the RFRA barred enforcement of those statutes against it; and that the First Amendment’s church autonomy doctrine provides immunity from liability. The court majority rejected all of these arguments.

Title VII’s Section 702 Exemption

Section 702 provides that Title VII “shall not apply to … a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” CRS argued that the exemption applies whenever a religious employer acts because an employee’s conduct is incompatible with its faith. The majority disagreed.

Relying on the canon that exemptions from remedial statutes are to be construed narrowly, the court held that Section 702 immunizes religious organizations only from religious discrimination claims; it “does not apply to claims of discrimination based on sex, race, or national origin,” even when a decision is motivated by religious belief. Applying Title VII’s familiar mixed-motive framework, the court explained that if sex is a but-for cause of the decision, a concurrent religious motive does not change the result. The court emphasized that religious organizations may still “favor co-religionists in hiring” and may also discharge employees whose conduct or beliefs are inconsistent with those of their employers from a religious perspective, so long as the decision is not in any way based on race, sex, or national origin.

MFEPA’s Religious Exemption

MFEPA exempts religious entities from sexual orientation claims for “work connected with the activities of the religious entity.” The Maryland Supreme Court previously held that this exemption applies only when the employee’s duties “directly further the core mission(s) … of the religious entity.” The Fourth Circuit affirmed the district court’s finding that the plaintiff’s IT and data roles were “materially indistinguishable from those performed by individuals at secular organizations” and therefore did not qualify as mission-related jobs.

The RFRA

The RFRA provides religious organizations with a shield from certain governmental regulations or enforcement when such action conflicts with an organization’s religious mission. However, based on the RFRA’s text, including its reference to “appropriate relief against a government,” the court held that the RFRA applies only when the government is a party to the suit. In this case, the U.S. Department of Justice merely intervened in this private litigation between an employee and his employer, and that scenario did not trigger the RFRA’s protections.

Church Autonomy

The church autonomy doctrine arises out of the First Amendment’s religious protections. It bars courts from deciding questions of faith, doctrine, or internal church governance. The majority recognized that the doctrine presumptively covers three areas: the employment of ministers, church membership and hierarchy, and church discipline. It declined to extend the doctrine to all employment decisions rooted in religious belief. Drawing on Justice O’Connor’s concurrence in the Supreme Court of the United States’ decision in Roberts v. U.S. Jaycees, the majority reasoned that a religious organization filling lay positions through the commercial employment market “must participate in the surrounding regulatory scheme just like every other employer.”

Interestingly, the court also expressly disagreed with the now-vacated January 2026 Ninth Circuit panel decision in Union Gospel Mission of Yakima v. Brown, which held that the church autonomy doctrine—a First Amendment principle beyond the ministerial exception—protects religious organizations’ nonministerial hiring decisions when based on sincerely held religious beliefs. That decision would have prevented enforcement of the Washington Law Against Discrimination’s antidiscrimination provisions with regard to hiring and employment decisions tied to the organization’s religious beliefs. That issue is now being reconsidered by the full U.S. Court of Appeals for the Ninth Circuit sitting en banc.

The Dissent

In dissent, Judge Quattlebaum would have reversed on several independent grounds.

• Church Autonomy. He reasoned that the church autonomy doctrine extends beyond the ministerial exception to “‘internal management decisions that are essential to the institution’s central mission.’” In his view, that includes setting terms of employment, including policies and benefits, based on religious tenets. He criticized the majority for treating religious freedom “like getting an after-work beer—a little bit is okay, but not too much.”
• Section 702. He also read this statutory section’s language that “this subchapter shall not apply” broadly to mean that all types of discrimination prohibited by Title VII—not just its religious discrimination ban—would disappear when a religious employer acts based on an employee’s religious observance or conduct that fails to conform to the religious employer’s requirements. He warned that under the majority’s view, religious organizations “[would] be required to hire employees who reject their beliefs,” but federal court precedent interpreting Section 702 has not traditionally gone that far.

Key Takeaways for Employers

A few points from the case may be worth considering by religiously affiliated employers in the Fourth Circuit:

• Section 702 appears to be narrower in the Fourth Circuit than some religious employers may assume. Within the circuit, the Section 702 exemption protects decisions based solely on religion, such as preferring co-religionists. However, it does not cover decisions in which sex (including sexual orientation under Bostock) or another protected characteristic is part of that decision.
• Benefits plans may merit a closer look. The case arose from an employer’s denial of dependent health insurance coverage, and the majority characterized the denial as unequal compensation based on sex. Religious employers may want to review their spousal and dependent eligibility rules, along with related plan documents and enrollment communications.
• Job duties. The ministerial exception remains available for employees who perform spiritual functions. Under MFEPA, the exemption turns on whether the employee’s duties directly further the organization’s core mission. Employers may want to evaluate and document the religious functions of key roles.
• Recruiting communications. In this case, a recruiter told the employee that his husband would be covered, and the employer reversed course months later. Employers may want to make sure recruiters and HR staff describe benefits eligibility accurately and consistently.
• The RFRA is not a defense in private suits in the Fourth Circuit. The court’s majority found that the “RFRA does not apply in cases between private parties” and concluded the RFRA was “not an available defense in this case.” Religious employers facing private discrimination claims in the Fourth Circuit may be hard-pressed to rely on the RFRA as a defense under this decision.
• Watch for further review. The 2–1 split, the eighty-seven–page dissent, and the conflicting authority across circuits suggest the case may draw further appellate attention. And we await the Ninth Circuit’s en banc opinion in Union Gospel Mission of Yakima v. Brown.

Ogletree Deakins will continue to monitor developments in these cases, including any petition for rehearing en banc or for a writ of certiorari, and will provide updates on the firm’s Employment Law and State Developments blogs as additional information becomes available.

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Quick Hits

• The  Ontario Superior Court of Justice read a “for cause” confidentiality provision together with a CEO’s termination clause and found that the parties objectively intended to comply with the Canada Labour Code, rather than isolating individual words.
• The court distinguished Ghazvini v. Canadian Imperial Bank of Commerce and Henderson v. Slavkin, finding that the clauses in those cases permitted termination without notice where the statute prohibits it, and that neither decision applied the Baker framework.
• Allegations that the CEO was dismissed in retaliation for raising concerns about legal retainers went to the reason for dismissal, not the manner of dismissal, and did not support moral damages.
• The claim was struck in its entirety without leave to amend, and the plaintiff was ordered to pay $24,500 in costs.

In Henshell v. Batchewana First Nation of Ojibways, 2026 ONSC 5768, the court applied the Court of Appeal for Ontario’s interpretive framework in Baker v. Van Dolder’s Home Team, 2026 ONCA 568, and held that a chief executive officer’s termination clause complied with the Canada Labour Code. The court also struck the former CEO’s claims for moral and punitive damages and dismissed the action without leave to amend.

Background Facts

The plaintiff, who pleaded that she was a practising lawyer with twenty years of experience, left her law practice to become CEO of Batchewana First Nation of Ojibways (BFN) under a written employment agreement. She was employed from May 6, 2024, until her employment was terminated without cause on July 23, 2024.

Section 13 of the agreement permitted BFN to terminate employment “for any lawful reason” upon providing the notice or pay in lieu of notice, and other entitlements, required by the Canada Labour Code, and excluded any further notice at common law. Separately, section 9 stated that any breach of BFN’s confidentiality policies “will be cause for severe discipline and/or termination of employment for cause.”

The plaintiff claimed $350,000, representing twenty-four months’ pay in lieu of reasonable notice, along with moral and punitive damages of $500,000 arising from her dismissal. BFN moved under Rule 21.01 of the Ontario Rules of Civil Procedure to have the termination clause declared enforceable and the claim struck.

The Court’s Findings

The Termination Clause Was Enforceable

The plaintiff argued that section 9 allowed BFN to terminate her employment for any confidentiality breach without her statutory entitlements, which rendered section 13 unenforceable. The court acknowledged that this reading might be plausible if the words were read literally and in isolation, but noted that it ignored the word “or,” which indicated that not every breach would result in termination for cause.

Applying Baker, the court described the framework as a “welcomed departure” from comparing isolated words from case to case, and asked instead whether the termination provisions reflected an objective intention to comply with the minimum statutory standards. Reading sections 9 and 13 together, the court found that neither party—including the plaintiff, an experienced lawyer—could reasonably have intended to displace her Canada Labour Code entitlements. The clause was valid and enforceable, and the plaintiff was not entitled to common law reasonable notice.

Moral, Punitive, and Repudiation Claims Were Struck

The court confirmed that moral damages are not an extension of the notice period and remain available even where a termination clause is enforceable. However, none of the facts pleaded—inducement to leave her practice, an “unceremonious” termination, alleged retaliation, a council member’s conflict of interest, and the denial of a promised second opportunity to address council—amounted to bad faith in the manner of dismissal. Citing the Supreme Court of Canada’s decision in Wallace v. United Grain Growers Ltd., the court noted that employers are not required to have “good faith” reasons for dismissal, and found there was no legal right to a second attendance before council.

The punitive damages claim failed because no independent actionable wrong was pleaded, and the alternative claim for repudiation failed because the alleged conduct fell well short of the egregious behaviour required. Because the plaintiff had already pleaded all of the facts on which she relied, the court refused leave to amend and fixed costs at $15,000 for the motion and $9,500 for the action.

Key Takeaways

Henshell illustrates how Baker is shifting the analysis of termination clauses away from a “magic words” approach and toward the parties’ objective intentions, read in light of the contract as a whole and the surrounding circumstances. While this may give employers greater confidence in well-drafted provisions, it is not a substitute for careful drafting. Employers may want to consider:

• including clear language in termination provisions confirming that, in all circumstances, employees will receive at least their minimum entitlements under the applicable employment standards legislation;
• reviewing “for cause” language in confidentiality, conflict of interest, and policy compliance provisions to ensure it does not suggest termination without statutory entitlements;
• documenting relevant contract terms at hiring, such as probationary periods and the treatment of prior service, which the court noted were inconsistent with the plaintiff’s allegation that she was promised long-term employment; and
• ensuring that the dismissal process itself is honest, transparent, and professional, as moral damages remain available even where a termination clause is enforced.

Ultimately, the decision suggests that an employer’s reason for dismissal, where that reason is not alleged to be unlawful, is unlikely on its own to attract moral damages—but how the dismissal is carried out remains open to scrutiny.

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

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Quick Hits

• DV-2026 visa processing and DV-2027 lottery registration have faced separate disruptions.
• DV-2027 registration remains closed, with no confirmed opening date.

Diversity Visa Lottery Background

Each year, the Diversity Visa program offers up to 55,000 immigrant visas to eligible individuals from countries with historically low levels of immigration to the United States. The process begins when individuals enter the lottery, and the State Department randomly selects entrants. Those selected may then apply for an immigrant visa or, if eligible, seek adjustment of status to lawful permanent residence in the United States.

As discussed in our June 2025 article on the DV lottery, selection does not guarantee a visa. Principal applicants must still meet education or qualifying work experience requirements and complete the remaining immigration process.

The program’s name identifies a federal fiscal year, not the calendar year in which people enter the lottery. For example, the State Department selected DV-2026 entrants on May 3, 2025. For DV-2027, the State Department has identified October 1, 2026, through September 30, 2027, as the visa application period, even though registration has not opened.

Key Events Leading to the DV-2027 Stay

September–November 2025. The State Department adopted a $1 lottery entry fee, then delayed DV-2027 registration without announcing an opening date.

December 2025–early 2026. The State Department paused DV visa issuance, and U.S. Citizenship and Immigration Services (USCIS) held decisions on DV green card applications. These measures affected people already selected, not the separate delay in opening DV-2027 registration.

March–April 2026. The State Department adopted a DV-2027 rule requiring most entrants to submit passport details. The rule took effect April 10, but registration remained closed.

August 19, 2026. Red Eagle Law, L.C., sued in its own name to require the State Department to open DV-2027 registration.

August 28, 2026. In a separate case, Medani v. Trump, a court ordered DV visa processing to resume. The State Department said its December 2025 issuance pause was no longer in effect. DV-2027 registration remained closed.

September 30–October 1, 2026. The DV-2026 visa year ended, and the DV-2027 visa year began without an open registration period.

October 14, 2026. In Red Eagle Law, L.C. v. Rubio, the court ordered the State Department to launch DV-2027. Under the revised timetable, the State Department had to:

• announce entry dates and requirements by October 29;
• open registration for thirty days by November 1; and
• notify selected entrants by December 3, 2026.

The October 14, 2026, order also required timely processing of DV-2027 visa applications. The government appealed.

Recent Updates

October 29, 2026: The Ninth Circuit temporarily stayed the district court’s order requiring the State Department to open DV-2027 registration. The appeals court granted the government’s request for an emergency stay. A stay temporarily suspends the lower court’s requirements while the appeal proceeds. As a result, the State Department was no longer required to meet the injunction’s October 29 announcement, November 1 registration, and December 3 selection-notification deadlines while the stay remains in effect.

November 1–2, 2026: DV-2027 registration remains closed. The previously ordered November 1 opening did not take place, and no confirmed replacement opening date is available. The stay does not finally resolve whether the State Department’s failure to launch the program is lawful.

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

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Quick Hits

• Unlimited PTO outside the United States does not eliminate the need to track minimum statutory leave, carryover, and payout-on-termination; rather, it adds a layer of complexity to it.
• In jurisdictions with already generous statutory leave regimes, unlimited PTO may create productivity and coverage challenges.
• Replacing a more generous contractual PTO entitlement with unlimited PTO is generally considered a detrimental change requiring employee consent.
• In some countries, employers looking to make changes to their PTO policies must complete a consultation process—which can take two to four weeks—before seeking employee consent.
• Employees outside the United States may perceive unlimited PTO as a disincentive to taking leave rather than a benefit, which can complicate rolling out an unlimited PTO policy even further.

Outside the United States, the administrative burden of tracking PTO accrual and carryover does not disappear. It often becomes more complicated.

The key international principle is this: An unlimited PTO policy does not replace statutory leave entitlements—it sits on top of them. Before going global, employers may want to address three critical issues: (1) generous statutory leave regimes, (2) changing contractual PTO entitlements, and (3) the consultation process.

Why Unlimited PTO Is Different Outside the United States

In the United States, employees generally do not have a legal entitlement to vacation. Internationally, the picture is different. Almost all other jurisdictions require employers to provide some minimum statutory vacation entitlement. Many jurisdictions also have rules requiring employers to allow employees to carry over some or all of their vacation entitlement from year to year, and to pay out any accrued but unused vacation upon separation from employment.

Overlaying an unlimited PTO policy on these legal requirements does not simplify compliance. Employers must still track each employee’s minimum statutory entitlement, ensure any unused statutory leave is carried over in accordance with local law, and make sure it is paid out on termination of employment. Against that backdrop, three critical issues arise when unlimited PTO goes global.

Issue 1: Generous Statutory Leave Regimes

Unlimited PTO policies should be assessed jurisdiction by jurisdiction. Some countries already have very generous statutory leave requirements, which may include twenty to thirty days of mandatory vacation, ten to fifteen public holidays, mandatory bereavement leave, paid sick days, and even leave for special occasions such as the birth of a child, a wedding, or moving to another house.

Layering a global unlimited PTO policy on top of these entitlements could result in employees in those jurisdictions receiving even more time off, which may affect productivity and create coverage issues—particularly in countries where extended summer vacations are already common.

Issue 2: Changing Contractual PTO Entitlements

Many employers already offer more PTO than local law requires, typically through employment contracts. Outside the United States, at-will employment generally does not exist, and the employment relationship is governed by employment agreements. An employer that wants to move to unlimited PTO—and achieve cost savings by paying out only accrued but unused statutory PTO on termination—will generally need employees to agree to an amendment to their employment agreements.

Employee consent is required because the change is considered detrimental to the terms and conditions of employment, even though employees may technically be able to take more PTO than before. Securing that consent can be challenging. While the change can be positioned as beneficial, many employees may hesitate to accept a reduced payout on termination.

Issue 3: The Consultation Process

In some countries, employers must consult with employees before requesting their consent. While requirements vary by country, consultation generally involves proposing the change, inviting feedback through individual meetings, group meetings, or written submissions, and genuinely considering that feedback before deciding whether to proceed.

Only after the consultation process—which can take approximately two to four weeks—should employers notify employees of the decision to change the PTO structure and ask them to sign a contractual amendment reflecting the new PTO terms.

To help facilitate employee agreement, employers may consider pairing the move to unlimited PTO with other beneficial changes, such as a one-time bonus, an improved medical or pension plan, or a new or enhanced global parental leave entitlement, presented as part of a single initiative.

A Thread Running Through All Three: Employee Perception

Each of these issues is shaped by how employees view unlimited PTO, which is very different outside the United States. Employees who already enjoy generous statutory leave often see it not as a benefit, but as a way to discourage them from using leave—making them less likely to agree to a contractual change and more likely to raise concerns during consultation. Unlimited PTO policies frequently include rules on when PTO may be used, how much may be taken at once, and how much can be combined with other statutory leaves, such as maternity leave. Employers adopt these rules to prevent abuse, but they can have a chilling effect, leading employees to take less PTO than they did under a defined entitlement, and which can result in higher payouts of statutory PTO on termination of employment.

A 2026-Ready Strategy

Multinational employers considering a global unlimited PTO policy may want to ensure their approach:

• assesses the policy jurisdiction by jurisdiction against existing statutory leave entitlements;
• continues to track minimum statutory leave, carryover, and payout obligations under local law;
• accounts for employee consent and, where required, consultation before amending contractual PTO entitlements;
• considers pairing the change with other beneficial changes to encourage employee agreement; and
• evaluates whether usage rules may discourage employees from taking leave.

Unlimited PTO does not replace statutory leave obligations—it adds to them. Employers that plan for generous statutory leave regimes, contractual PTO entitlements, and local consultation requirements from the outset will be best-positioned to roll out unlimited PTO globally. A global unlimited PTO template cannot absorb the complexity of international leave laws. A thoughtful, jurisdiction-specific global PTO strategy can.

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

Shirin (Aboujawde) Gudgin is a shareholder in the New York office of Ogletree Deakins, and a partner in the firm’s London office.

Peg Ventricelli, a practice assistant in the Stamford office of Ogletree Deakins, contributed to this article.

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The agency’s April 2024 final rule implementing the statute was not as widely applauded. Now that the EEOC has formally announced plans to revise that rule, employers should expect a narrower regulatory definition of what the PWFA covers. Employers need to read beyond headlines declaring protections will be rolled back and not expect any slowdown in enforcement on behalf of pregnant and newly postpartum workers who require basic accommodations to keep working.

Quick Hits

• The EEOC plans to revise its 2024 PWFA rule, with a proposal expected in November 2026 that may narrow the list of “related medical conditions” eligible for accommodation. The proposed rule may also broaden religious exemptions for employers, and may look at the definition of “near future.”
• A revised rule does not mean less enforcement. The EEOC continues to file actions to vindicate rights under the PWFA and its implementing regulations.
• Employers may want to consider training managers and human resources professionals on the PWFA, keeping clear and documented accommodation processes, and reviewing their policies.

Chair Lucas’s Dissent From the 2024 Final Rule

Then-Commissioner Lucas voted to disapprove the final rule on April 3, 2024. While she supported elements of the rule, she concluded that it “purports to broaden the scope of the statute in ways that … cannot reasonably be reconciled with the text.” In her words:

“At a high level, the rule fundamentally errs in conflating pregnancy and childbirth accommodation with accommodation of the female sex, that is, female biology and reproduction. The Commission extends the new accommodation requirements to reach virtually every condition, circumstance, or procedure that relates to any aspect of the female reproductive system.”

Her statement specifically criticized the rule’s definition of “pregnancy” as including “past pregnancy” and “potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception),” warning that it “opens the door to requiring accommodations potentially extending to a myriad of conditions ranging from infertility to menstruation to hormone issues to menopause.” As she put it, “This is the Pregnant Workers Fairness Act after all, not the Female Workers Fairness Act.” In her view, the PWFA covers the limitations of an employee’s actual, specific pregnancy and childbirth, plus medical conditions caused or worsened by that pregnancy or childbirth.

In early 2025, as acting chair, Lucas reiterated her opposition to the rule’s construction of “pregnancy, childbirth, or related medical conditions.” She noted, however, that the Office of the Chair could not rescind or modify a final rule on its own under the Administrative Procedure Act.

The Inclusion of Elective Abortion as a Related Medical Condition Has Already Been Vacated

On May 21, 2025, in Louisiana v. EEOC, the U.S. District Court for the Western District of Louisiana vacated portions of the final rule that treated so-called “elective abortion” as a “related medical condition” and that required, or suggested that employers provide, accommodations for abortions not necessary to treat a medical condition related to pregnancy. The court sent the rule back to the EEOC for revision. The decision to have or not have an abortion remains protected under the Pregnancy Discrimination Act.

The EEOC’s Announced Revisions

With its quorum restored, the EEOC has now placed “Revisions to the Pregnant Workers Fairness Act Regulations” (RIN 3046-AB36) on the Unified Agenda at the proposed rule stage, designated as “economically significant.” The agenda entry states:

“The EEOC proposes to revise its existing regulations implementing the Pregnant Workers Fairness Act (PWFA) that requires covered entities to provide reasonable accommodations to a qualified worker’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship. Among other revisions, the EEOC proposes revising language in the regulations regarding the interpretation of the words ‘pregnancy, childbirth, or related medical conditions.’”

The agenda projects a notice of proposed rulemaking (NPRM) in November 2026, with comments due in January 2027. The proposal has not yet been published. Given Chair Lucas’s stated views, however, the EEOC can be expected to propose removing infertility, menstruation, use of birth control, and past pregnancy from the regulatory scope of “pregnancy, childbirth, or related medical conditions” and to tie coverage to an employee’s current pregnancy or childbirth, and the conditions caused or exacerbated by them. Until a revised rule is final, the 2024 rule stays in effect, minus the vacated abortion provisions.

The Core Obligation to Accommodate Pregnant and Newly Postpartum Workers Remains

Employers should not mistake a narrower definition for a retreat from enforcement. Chair Lucas has applauded the passage of the PWFA and has been clear that its core purpose is ensuring that pregnant women receive the “minor, simple, temporary accommodations” that help them keep working and stay in the workplace. The EEOC’s recent litigation and conciliation activity shows the agency is acting on that purpose. A common thread runs through these cases: the EEOC is targeting employers that fail to provide straightforward accommodations, fail to consider leave as an accommodation, direct pregnant workers to unpaid leave, apply rigid attendance or leave policies, deny pregnant workers access to light-duty assignments given to those with work-related injuries, or discharge workers after they ask for accommodation.

The following is a sampling of recent EEOC pregnancy matters:

• October 2026 settlement. An employee with pregnancy-related complications was allegedly told the company did not provide accommodations for pregnancy when she asked for an accommodation of a lifting restriction. She was then put on unpaid leave and was subsequently discharged. Outcome: The company agreed to pay $245,000 and entered into a two-year consent decree requiring PWFA accommodation procedures, manager and HR training, and reporting to the EEOC.
• September 2026 lawsuit. The EEOC brought suit against a nonprofit employer that allegedly refused to accommodate a temporary twenty-pound lifting restriction even though it routinely gave light duty to other employees with similar restrictions. Instead, it placed the employee on leave and fired her when that leave ran out shortly before her due date.
• September 2026 conciliation. An electronic equipment company allegedly reassigned a pregnant worker to operate machinery that used X-ray radiation, then terminated her employment rather than return her to her original role after her doctor said she should avoid radiation. The EEOC conciliated the charge, and the employer agreed to pay back pay, as well as undertake policy, recordkeeping, training, and reporting obligations.
• September 2026 conciliation. A nightclub and bar allegedly stopped scheduling a pregnant employee who had no medical restrictions and refused to consider reassignment. The EEOC conciliated the charge, and the employer agreed to pay back pay, as well as adhere to policy, recordkeeping, training, and reporting obligations.
• August 2026 class lawsuit. The EEOC brought suit against a manufacturer that allegedly refused light duty for pregnancy-related lifting restrictions while giving light duty for on-the-job injuries. One employee was allegedly told her doctor’s note was “not good enough” and was discharged from employment the next day. The employer also allegedly denied nursing mothers adequate break time and private space to pump.
• July 2026 lawsuit. The EEOC brought suit against a toy manufacturer that allegedly refused to excuse pregnancy-related absences under its attendance policy. The company also allegedly denied requests to sit briefly between assemblies, take more frequent breaks (e.g., restroom breaks and breaks to eat and drink), and avoid highly strenuous assemblies.

What Employers Can Do Now

Whatever the revised rule eventually provides regarding accommodations for infertility, contraception, or menstruation, the EEOC has indicated it is interested in enforcing the core of the PWFA: current pregnancies and recent childbirth. Employers may want to consider the following:

• Training managers and HR professionals on the PWFA. In recent EEOC litigation matters, frontline managers who refused accommodation requests outright or failed to recognize them have come into focus. EEOC officials have publicly said that many employers still have not adequately trained on the PWFA.
• Maintaining a clear accommodation process. Documenting requests, engaging in the interactive process promptly, and tracking outcomes can be beneficial. Several recent resolutions required exactly these recordkeeping mechanisms.
• Not defaulting to a leave solution. The PWFA prohibits requiring an employee to take leave when another reasonable accommodation would have let her keep working.
• Evaluating leave under the PWFA as an accommodation independent of the Family and Medical Leave Act (FMLA). An employee who is not FMLA-eligible may still be entitled to leave under the PWFA for a pregnancy-related condition or for recovery from childbirth.
• Reviewing light-duty and attendance policies. Policies that offer light duty only for workplace injuries, or that assess points for pregnancy-related absences, have been recurring targets.
• PUMP Act requirements and PWFA lactation accommodations. Break time and private space to express milk for nursing infants remain enforcement priorities for both the U.S. Department of Labor (as entitlements under the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and the EEOC (for accommodations under the PWFA).
• Monitoring the rulemaking. Watch for the NPRM and consider submitting comments during the comment period.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group and Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor the EEOC’s rulemaking and enforcement activity and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, and Leaves of Absence blogs as additional information becomes available.

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Quick Hits

• New York’s Trapped at Work Act restricts the use of “stay or pay” agreements, which, as a condition of employment, require employees to reimburse an employer for certain expenses or costs if the employment relationship ends before a specified date.
• Repayment agreements that are not a condition of employment are permissible.
• The New York Department of Labor may issue fines ranging from $1,000 to $5,000 for violations of the Trapped at Work Act. There is no private right of action under this law.
• The law will take effect on December 19, 2026.

The NYSDOL’s recently released guidance clarifies the following key issues:

• Existing agreements are not covered: The law applies only “to new agreements, or new or amended terms in existing agreements, entered into on or after December 19, 2026.” Thus, if an agreement is entered into before December 19, 2026, even if the repayment obligation arises after December 19, the agreement is exempt from the law (assuming the agreement is not modified after December 19.)
• Only agreements that are a condition of employment are banned: The law applies only to agreements that require, as a condition of employment, that an employee or applicant pay the employer back if the employment relationship ends before a specific time period. Significantly, this means voluntary agreements and agreements that are not entered into as a condition of employment are not covered by the law.
• Bonus, relocation and other payments not tied to job performance are permissible: Agreements to repay a sign-on bonus, relocation assistance, or other noneducational incentives, payments, or benefits that are not tied to specific job performance are allowed, unless the employee was dismissed for “other than misconduct or the duties or requirements of the job were misrepresented to the employee.” As long as the job was accurately described to the employee, the employer may still require repayment where an employee voluntarily departs or when termination is for misconduct.
• Education and credentialing costs may be recoverable: Agreements to reimburse the employer for the cost of general education or transferable credentials are permissible as long as:

• the agreement is set forth in a written contract that is offered separately from any contract for employment;
• the agreement does not require the employee to obtain the transferable credential as a condition of employment;
• the agreement specifies the repayment amount before the employee agrees to the contract, and the repayment amount does not exceed the employer’s cost for tuition, fees, and educational materials;
• the agreement provides for a prorated repayment amount that is proportional to the total repayment amount and the length of the required employment period and does not require an accelerated payment schedule if the employee separates from employment; and
• the agreement does not require repayment to the employer if the employee is fired, except when the employee is fired for misconduct.

The guidance defines “transferable credentials” as “any degree, diploma, license, certificate, or documented evidence of skill proficiency or course completion” that employers widely recognize in a relevant industry and that “provides skills or qualifications that demonstrably enhance the employee’s employability with other employers in the relevant industry.” Employer-specific training and mandated safety and compliance training do not qualify as transferable credentials.

• Collective bargaining agreements and sabbaticals:Agreements entered into as part of a program agreed to by an employer and a union in a collective bargaining agreement are permissible, as are agreements requiring educational personnel to comply with any terms or conditions of sabbatical leave granted by their employer.

Next Steps

Employers in New York may wish to review their policies and practices regarding “stay or pay” agreements and update them as needed to comply with the new law before December 19, 2026. Employers also may want to consider reviewing and updating job advertisements and job descriptions to help ensure that jobs are accurately described to applicants and employees.

Ogletree Deakins’ New York offices will continue to monitor developments and will post updates on the Employee Benefits and Executive Compensation and New York blogs as additional information becomes available.

Joseph B. Cartafalsa is a shareholder in Ogletree Deakins’ New York office.

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

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

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Quick Hits

•  Courts and labor authorities outside of the United States often look at how compensation is paid in practice, and local statutory entitlements can override the plan terms entirely.
• Bonus terms that are consistently applied year after year can become contractual entitlements that are difficult to change or withdraw.
• In some countries, such as China, offering actual equity can be impractical or restricted, and companies often use phantom equity (cash-settled awards) as a workaround.
• Referencing U.S. parent equity in a local employment contract can create joint employment or co-employer risk.
• Commissions may need to be factored into vacation pay, termination and end-of-service payments, and other leave entitlements—often based on average earnings over a reference period.

The Fundamental Differences Between Compensation Plans

In the United States, plan documents and at-will employment give employers considerable flexibility. Internationally, that flexibility often disappears.

The key international principle is this: What a plan document says is not always what local law will enforce. Courts and labor authorities often look at how compensation is actually paid in practice, and local statutory entitlements can override the plan terms entirely.

U.S. employers generally have broad discretion to design, amend, and terminate incentive plans, and well-drafted plan documents are usually enforced as written. Internationally, the picture is different. Many jurisdictions treat variable pay as part of the employee’s remuneration, protect acquired rights, and require that variable pay be included in the calculation of statutory entitlements. A plan that works in the United States may create unexpected liabilities when rolled out globally without local review.

Bonus Plans: The Payout Date Is Not Always the Deciding Factor

Many U.S. bonus plans require that the employee be actively employed on the payout date to receive a bonus. In a number of jurisdictions outside the United States, that condition may not be enforceable—or may be enforceable only in limited circumstances. Where a bonus is viewed as compensation for work already performed during the bonus period, employees who leave before the payout date, particularly where the employer terminates the relationship, may be able to claim the full bonus or a pro-rated portion of it, notwithstanding the plan language.

A related risk is the concept of acquired rights or implied terms. Where a bonus has been paid consistently, on the same basis, year after year, courts in many countries may treat it as an established term of employment—even where the plan describes it as discretionary. Once that happens, it can be difficult to reduce, change, or withdraw the bonus without employee consent, consultation, or a compensatory payment. Clearly and repeatedly communicating the discretionary nature of bonuses, having a new bonus plan issued every year, varying the criteria where appropriate, and documenting that each award is a one-time decision can be helpful tools in avoiding the presumption that bonus terms are immovable.

Equity: Who Issues the Stock, and Where It Is Mentioned, Matters

Equity awards are a core part of compensation for many U.S. companies, but they do not always translate abroad. In some countries, offering actual equity to local employees is restricted or impractical due to exchange controls, securities rules, or registration requirements. China is a common example. In these jurisdictions, companies often use phantom or ghost equity as a workaround—awards that track the value of the company’s stock but are settled in cash rather than shares. Phantom plans raise their own issues, including tax treatment, payroll withholding, and whether the cash payments become part of the employee’s salary for other purposes.

In addition, which entity is issuing the stock—whether the parent company or a subsidiary—is an important matter for U.S. employers. Equity is typically granted by the U.S. parent, while the employee is employed by a local subsidiary. If the local employment contract promises or describes the parent’s equity awards, the employee may argue that the parent is a joint employer or co-employer—potentially exposing the parent to local employment claims and making the equity award part of the employee’s contractual remuneration. In some cases, it may be advisable not to refer to equity in the employment contract at all, and instead to reference it only in a separate side letter or award agreement issued directly by the U.S. parent, making clear that participation is governed by the parent’s plan and is not part of the local employment relationship.

Commission Plans: The Ripple Effect on Other Benefits

Commission plans can have consequences well beyond the commission payment itself. In many jurisdictions, commissions are treated as part of the employee’s regular remuneration and must be taken into account when calculating vacation pay, termination indemnities, end-of-service payments, and other leave entitlements. The calculation is often based on the employee’s average earnings—including commissions—over a defined reference period, such as the preceding three or twelve months.

The practical consequence is significant: An employer that budgets only for the commission payments themselves may materially underestimate the true cost of a commission plan, and may face underpayment claims for vacation pay or severance if the local rules are not followed. Employers should understand these rules before offering commissions in a new jurisdiction, and build them into payroll processes from the outset.

A 2026-Ready Strategy

U.S.-based multinational employers rolling out global compensation plans covering employees working outside the United States may want to ensure those plans:

• are reviewed locally to confirm whether payout-date and active-employment conditions are enforceable;
• clearly document the discretionary nature of bonuses to reduce acquired rights risk;
• confirm whether equity can be offered in each country and use phantom or cash-settled alternatives where it cannot;
• keep equity references out of local employment contracts where appropriate, using a side letter from the U.S. parent to manage co-employment risk; and
• account for the impact of commissions on vacation pay, termination and end-of-service payments, and other leave entitlements before commission plans are introduced.

Compensation plans have local rules. Payout conditions, past practice, equity restrictions, and statutory benefit calculations can all override the terms of a well-drafted U.S. plan.

A global compensation template cannot absorb the complexity of international employment law. A global compensation strategy can.

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

Shirin (Aboujawde) Gudgin is a shareholder in the New York office of Ogletree Deakins, and a partner in the firm’s London office.

Peg Ventricelli, a practice assistant in the Stamford office of Ogletree Deakins, contributed to this article.

While this article focuses on employment considerations when looking to execute certain compensation programs, there are many other factors to keep in mind, particularly international tax implications. Employers will want to consult their own international tax consultants on all of these matters.

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