Quick Hits

• The State Department has exhausted all EB-2 immigrant visa numbers for India-chargeable applicants in FY 2026.
• Embassies, consulates, and USCIS cannot issue or approve EB-2 India cases for the remainder of the fiscal year.
• Annual visa limits will reset on October 1, 2026, at the start of FY 2027.

The Immigration and Nationality Act (INA) imposes both category-based and per-country limits on employment-based immigrant visas. Under INA Section 203(b)(2), the EB-2 category receives 28.6 percent of the worldwide employment-based visa allocation each fiscal year. Additionally, INA Section 202(a)(2) caps natives of any single country at seven percent of the combined total of employment-based and family-sponsored visas, prorated among categories under INA Section 202(e).

Because all available EB-2 visas for India-chargeable applicants in FY 2026 have been issued, no new EB-2 India immigrant visas can be issued through consular processing, and pending adjustment of status applications cannot be approved for the remainder of the fiscal year. Pending cases are not denied; they remain pending until visa numbers become available.

Key Takeaways

Employers sponsoring Indian national employees in the EB-2 category should be aware that no further green card approvals in this category will occur until the new fiscal year begins.

The annual limits will reset with the start of FY 2027 on October 1, 2026. At that point, embassies and consulates may resume issuing immigrant visas, and USCIS may resume adjudicating adjustment of status applications in the EB-2 India category for qualified applicants.

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

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Quick Hits

• The Supreme Court held that delivery drivers who deliver goods originating from out of state may fall under the FAA’s exemption for certain transportation workers “engaged in … interstate commerce,” even if they do not cross state lines or interact with vehicles that do.
• The decision is the latest in a series of Supreme Court rulings in recent years interpreting the transportation worker exemption in the FAA.
• While a transportation worker is exempt from the FAA, an arbitration agreement with such a worker nonetheless may be enforceable under state law.
• Employers may want to review (1) the extent to which they have workers who might be considered “transportation workers” exempt from the FAA, (2) whether they want to add or revise a back-up state choice of law provision in their arbitration agreement, and (3) whether they want to create a separate arbitration agreement for those workers likely to be governed by state law rather than the FAA.

The decision, which addressed a category of workers often referred to as “last leg” or “last mile” delivery drivers, is the latest in a series of Supreme Court rulings in recent years that have interpreted the FAA’s transportation worker exemption. The FAA requires courts to enforce most private arbitration agreements, but Section 1 of the Act exempts certain transportation workers who are “engaged in … interstate commerce.”

In a unanimous opinion by Justice Neil Gorsuch, the Court declined to adopt a bright-line rule that for a worker to be covered by the transportation worker exemption, the worker “must either cross state lines or interact with a vehicle that does,” such as by loading or unloading cargo.

Key Takeaways

The Supreme Court’s ruling—and the Court’s interpretation of the FAA’s transportation worker exemption—have significant implications for employers that distribute or transport goods and their existing arbitration agreements with workers.

Employers may wish to evaluate the extent to which they have workers who might be considered “transportation workers” exempt from the FAA.

Second, employers may want to consider whether to add or revise a back-up state choice-of-law provision in their arbitration agreements, as an arbitration agreement that relies solely on the FAA for its enforceability may be unenforceable against exempt workers.

Finally, for those employers with transportation workers, they may want to create a separate arbitration agreement for those workers likely to be governed by state law rather than the FAA, thereby enhancing the likelihood of enforcing the arbitration agreement under state law even if the FAA does not apply.

Ogletree Deakins Arbitration and Alternative Dispute Resolution Practice Group will continue to monitor developments and will provide updates on the Arbitration and Alternative Dispute Resolution and Trucking and Logistics blogs as additional information becomes available.

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Quick Hits

• Connecticut’s recently enacted Public Act No. 26-12 introduces comprehensive workplace changes affecting employers in the state. Among the changes are provisions related to wage-range transparency, employment agreements, the minimum wage, adjustments for cannabis establishments, employees’ rights to reasonable accommodation under the ADA, breastfeeding accommodations, and paycheck transparency for large employers.
• Among the notable changes is an expanded wage-range disclosure requirement that obligates employers to now disclose benefits in addition to wage ranges in good faith to applicants early in the hiring process for positions with duties in or reporting to Connecticut. Retaliation for exercising wage disclosure rights is prohibited, though punitive damages for violations are no longer available.
• In addition, the law includes a ban on employment promissory notes. All Connecticut employers, regardless of size, are prohibited from requiring employees to repay sums if leaving before a set time, including training reimbursements, effective for agreements executed after October 1, 2026. Certain contractual provisions that permit employers to recover specific expenses, such as money advanced to employees, are exempt from the law’s coverage.

Amendment to Connecticut’s Wage-Range Disclosures (Effective October 1, 2026)

Connecticut’s wage-range disclosure law has been expanded to include the disclosure of available benefits. The amendment defines “benefits” to include health insurance, retirement, fringe benefits, paid leave, and any other compensation (other than wages) offered with a position. Information about benefits must now be disclosed at the same time as wage-range disclosures.

Employers must also now set a wage range for a position in “good faith” rather than merely setting a range the employer anticipates relying on. Employers must also now provide these disclosures to a job applicant upon the earliest of the applicant’s request, or prior to any discussion of compensation with the applicant or an offer of compensation to the applicant. The law previously required that disclosure be made upon the earliest of the applicant’s request or prior to the offer.

The law prohibits employers from retaliating or discriminating against a job applicant or employee for exercising rights under the wage-disclosure law, including by refusing to hire, interview, promote, or by terminating the individual’s employment. Additionally, the amendment specifies that the wage disclosure law applies to positions with duties performed in Connecticut, or where duties are performed out of state but the employee reports directly to a supervisor, office, or work site in the state.

Notably, the amendment removes a court’s ability to award punitive damages against employers found in violation of the wage disclosure law, though compensatory damages, attorney’s fees, costs, and other equitable relief remain available.

Amendment to Prohibition on Promissory Notes (Effective October 1, 2026)

Under current law, only employers with at least twenty-six employees are prohibited from requiring an employee to execute an agreement that requires the employee to repay the employer a sum of money if the employee does not remain at the job for a certain duration, including reimbursement for training. The new law now brings all employers under this prohibition, regardless of size, for agreements executed on or after October 1, 2026.

An “employment promissory note” is defined as an instrument or agreement requiring an employee to pay the employer, or its agent or assignee, if the employee leaves employment before a set amount of time, including agreements stating that the payment is reimbursement for employee training. However, the law specifically exempts contract provisions that permit an employer to recoup certain expenses, such as money advanced to an employee. An employment promissory note executed as a condition of employment is void, but its invalidity does not affect other provisions of the employment agreement in which it is contained.

Amendment to Minimum Wage at Cannabis Establishments (Effective October 1, 2026)

Upon the effective date of this amendment, employers operating dispensaries, producers, and retail cannabis establishments will no longer be able to count tips as part of the state’s minimum wage requirements. It further specifies that any cannabis establishment, dispensary, or producer that pays an employee less than the state minimum wage is in violation of the minimum wage law. The state’s existing “tip credit” law, which generally allows employers to pay less than the minimum wage to bartenders and hotel and restaurant staff who customarily receive tips (so long as tips make up the difference), remains unchanged.

Requirement to Post Federal ADA Information (Effective October 1, 2026)

The new law require employers to give written notice about an employee’s right to reasonable accommodations in the workplace for a disability under the Americans With Disabilities Act (ADA) to: (1) new employees at the start of their employment; (2) existing employees by January 29, 2027; and (3) any employee who notifies the employer about his or her disability within ten days after the notification. Employers may alternatively comply by displaying the poster created by the Connecticut Department of Labor in a conspicuous place, accessible to employees, at the employer’s place of business. The Department of Labor Commissioner may also adopt regulations establishing additional requirements for how employers must provide the notice.

Amendment to Breastfeeding and Expressing Milk at the Workplace Requirements (Effective October 1, 2026)

Connecticut employers will now be required to provide reasonable break times for an employee to express breast milk for the employee’s nursing child or to breastfeed at the workplace, in addition to the employee’s regular scheduled breaks. Current law only allows an employee to express breast milk or breastfeed during her meal or break period; the amended law expands this right to additional break times beyond those already scheduled.

Existing law, unchanged by the amendment, requires an employer to make reasonable efforts to provide a room or location near the work area (other than a toilet stall) that is private, has or is near a refrigerator or other employee-provided portable cold storage device, and has access to an electrical outlet. This provision generally aligns with the federal requirement for a reasonable break time and a private space other than a bathroom to express breast milk for up to one year after a child’s birth (29 U.S.C. § 218d).

New Paycheck Transparency Requirement (Effective October 1, 2026)

The latest law introduces a new requirement for large employers (i.e., employers with at least one hundred or more employees). Covered employers must now create a guide for their employees on the pay codes used for overtime and the most commonly used pay differentials, such as shift differentials, on-call pay, hazard pay, call-back pay, holiday or weekend pay, or geographic pay differentials. Each guide must

• include at least ten pay codes;
• be posted on the employer’s website in English, Spanish, and the most common other languages spoken by its employees;
• include contact information for the designated office or person who will handle employee disputes about calculations of hours and pay differentials.

Covered employers must update the guide each time a new pay code is added for overtime or a pay differential. Covered employers must include a link to the guide on each record of hours given to an employee and provide new employees with the website address to the guide upon hire. Covered employers may also comply by providing a written copy of the guide to an employee upon hire in English and the employee’s primary language. An employer is deemed to be in compliance if it uses a third-party payroll services company that provides the pay code guide required by the law. The law does not require an employer to establish or maintain an internet website if it does not currently have one, or to create new pay codes solely to satisfy these new requirements.

Key Takeaways

These latest changes to the law present tasks involving several compliance issues. Employers may want to update their hiring and recruiting processes to include wage ranges set in good faith and a general description of benefits in job postings, with particular attention to positions where duties are performed out of state but the employee reports to a Connecticut supervisor, office, or work site.

Employers with existing employment agreements may want to audit and review any agreements requiring employment promissory notes as a condition of employment.

Employers that do not already post or distribute ADA reasonable accommodation notices may want to begin developing and distributing such notices according to the timing requirements of the law.

Employers may want to revisit workplace policies concerning breastfeeding or expressing milk at work, so that reasonable break times outside of scheduled breaks are allowed.

Finally, large employers may want to begin preparing multilingual pay code guides and designate responsible individuals for handling pay disputes. Taking steps to integrate guide links into payroll records and onboarding materials will further reach compliance with the latest law.

Ogletree Deakins’ Stamford office will continue to monitor developments and provide updates on the Connecticut blog as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on Connecticut’s laws. Premium-level subscribers have access to full law summaries; 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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The pause in Chicago’s incremental tip credit phaseout is a victory for employers in the hospitality industry that rely on a “tip credit,” which allows an employer to pay an eligible tipped employee a lower direct cash wage than the standard minimum wage by using tips the employee earns to satisfy the employer’s minimum wage obligations. Chicago’s current minimum wage is $16.60 per hour, and the permissible maximum tip credit is $3.98 per hour (24 percent of the current minimum wage rate), which means that tipped employees working in Chicago must be paid at least $12.62 per hour.

Quick Hits

• Chicago’s tip credit phaseout, which would have eliminated the subminimum tipped wage by 2028, is now paused, with the next phased adjustment postponed until 2028 or later, depending on employer size.
• Enacted in 2023 and applicable to all workers employed within Chicago’s city limits, the One Fair Wage ordinance was calibrated to reduce the tip credit over the course of five years, with its eventual elimination scheduled to have occurred by July 1, 2028.
• The delay in the phaseout may help businesses manage rising labor costs. The tip credit is currently 24 percent of Chicago’s current minimum wage rate.

Chicago’s One Fair Wage Ordinance

In 2023, the Chicago City Council voted to gradually eliminate Chicago’s tip credit under the One Fair Wage ordinance, beginning on July 1, 2024. The ordinance provided a five-year plan to lower the Chicago subminimum “tipped” wage so that all tipped workers eventually earned the full standard minimum wage by 2028. Importantly, the ordinance applied to anyone who worked within Chicago’s city limits, even if the employer’s location was not in Chicago.

The allowable tip credit under the ordinance was scheduled to decrease to 16 percent of the applicable minimum wage on July 1, 2026, eventually phasing out to 0 percent of the applicable minimum wage by July 1, 2028. Opponents of the ordinance pointed out that eliminating the tip credit would drastically increase employers’ payroll costs and that the phaseout disproportionately impacted businesses since tipped employees, on average, earn far more than the minimum wage, inclusive of tips.

Impact of the Pause

The tip credit phaseout is now paused for two years, meaning that the next mandated wage increase will not take effect on July 1, 2026. Under the new measure, businesses with more than twenty-one employees should expect to comply with the ordinance (i.e., eliminate their use of the tip credit) by 2030. Businesses with between three and twenty-one employees would have to comply by 2033.

The pause helps restaurant owners adjust to rising costs and better manage labor costs. Ultimately, though, the still-inevitable rise in payroll costs from the elimination of the tip credit may result in higher menu prices and staffing cuts.

What Employers Can Do Now

Employers that rely on the Chicago tip credit should make sure their payroll systems halt the previously scheduled July 1, 2026, tipped wage increase, and be aware of the new tiered phaseout, depending on the size of the business. Employers should also continue to comply with other applicable tip laws and regulations, including providing tip credit notices to employees and following tip pool restrictions.

Ogletree Deakins’ Chicago office, Hospitality Industry Group, and Wage and Hour Practice Group will continue to monitor developments and will provide updates on the Hospitality, Illinois, and Wage and Hour blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on wage and hour laws, including state and major locality minimum wage and tip credit requirements, such as the recent development in Chicago. Premium-level subscribers have access to full law summaries—which include current, upcoming, and future scheduled minimum wage and tip credit rates. 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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Quick Hits

• On May 19, 2026, President Trump issued an executive order calling for stricter due diligence requirements when financial institutions vet customer applications.
• The executive order requires banks and financial services companies to treat customers’ immigration status as a factor in evaluating potential financial risk.
• The executive order’s stated purpose is to “safeguard [the] financial system from illicit use[s],” such as unwithheld payroll taxes, money laundering, terrorism financing, and labor trafficking.

The executive order directs the secretary of the treasury and federal regulators to propose changes to Bank Secrecy Act regulations to strengthen due diligence requirements for financial institutions. A White House fact sheet explains, “Gaps in customer identification practices have allowed terrorists, drug traffickers, money launderers, and other criminal networks to exploit U.S. financial institutions to move illicit funds and evade law enforcement.”

The executive order describes red flags associated with suspicious financial activity, including:

• “evidentiary patterns of payroll tax evasion by employers or labor brokers,” including failures to withhold or remit federal taxes for non–work-authorized individuals;
• the use of unregistered third-party payment processors or digital platforms to “facilitate ‘off-the-books’ wage payments intended to bypass Bank Secrecy Act reporting thresholds or tax obligations”;
• the use of certain “foreign-identity documents, nominee accounts, shell companies, or complex ‘funnel’ structures designed to obfuscate the identity of the ultimate beneficial owners or conceal the true nature of payroll disbursements”;
• “patterns of repetitive, sub-threshold cash withdrawals or deposits that correlate with payroll cycles conducted outside of regulated payroll processing systems”;
• “financial activity indicative of labor trafficking or forced labor … where proceeds are commingled with legitimate business revenue or transferred to foreign jurisdictions; and
• “the use of an individual taxpayer identification number (ITIN) to obtain credit products or open depository accounts where the applicant lacks verified lawful immigration status.”

The executive order clarifies that an ITIN “facilitates tax compliance,” but its use in lieu of a Social Security number or valid work-authorized visa “may be identified as a risk factor requiring enhanced due diligence to ensure the account is not being utilized to facilitate the unlawful employment of unauthorized aliens.”

The executive order could make it more difficult for employees who are not U.S. citizens to open bank accounts, obtain credit, and access other financial services. It calls on federal regulators to issue guidance for banks and other financial institutions on managing the credit risks associated with extending loans and providing financial services to individuals without work authorization. It also directs the Consumer Financial Protection Bureau to consider changing regulations to clarify that potential deportation and loss of wages are factors that could affect a borrower’s ability to repay a loan.

Next Steps

The executive order could lead to new proposed rules from federal regulators in the upcoming months. Employers in the financial services industry may wish to evaluate their customer due diligence protocols to gauge whether any changes may be needed in the future. Current federal law does not require U.S. citizenship as a qualification for a car loan, mortgage, or credit card in the United States.

Ogletree Deakins’ Employment Tax Practice Group and Financial Services Industry Group will continue to monitor developments and will post updates on the Employment Tax and Immigration 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.

Michael K. Mahoney is a shareholder in Ogletree Deakins’ Morristown office, and he is the chair of the firm’s Employment Tax Practice Group.

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

• Businesses operating websites, online services, or applications primarily providing a forum for user-generated content may qualify as “covered platforms” subject to the TAKE IT DOWN Act’s notice-and-takedown requirements.
• The act’s platform obligations can carry significant civil fines of up to $53,088 per violation.
• Even employers that are not covered platforms may want to familiarize themselves with the act’s requirements in the event an employee reports that nonconsensual intimate images—whether authentic or AI-generated—have been posted online.

The TAKE IT DOWN Act raises two distinct questions for employers: first, whether their business qualifies as a “covered platform” that must comply with the act’s notice-and-takedown obligations, and second, if not, what they should do if an employee reports that nonconsensual intimate images (NCII) of them have been posted online.

TAKE IT DOWN Act Provisions: NCII Bans and Takedown Requests

The TAKE IT DOWN Act contains two main provisions. First, the act prohibits using in interstate or foreign commerce an “interactive computer service to knowingly publish an intimate visual depiction of an identifiable individual,” if:

• the depiction was obtained or created under circumstances in which the person knew or should have known the identifiable individual had a reasonable expectation of privacy;
• what is depicted was not voluntarily exposed by the identifiable individual in a public or commercial setting;
• what is depicted is not of public concern; and
• publication of the depiction is either intended to cause harm or actually causes harm to the identifiable individual, including psychological, financial, or reputational harm.

Critically, the act applies to visual depictions of an individual, whether the material is real, AI-generated, or another computer-generated recreation of a person’s likeness. Additional rules apply if the individual depicted is a minor.

Second, the TAKE IT DOWN Act requires covered platforms to establish a process whereby an identifiable individual (or the individual’s authorized agent) may submit a notification to the covered platform of the existence of an intimate visual depiction and request removal. A covered platform must provide clear and conspicuous notice of its notice-and-removal process that is easy to read and in plain language, and that provides information regarding the responsibilities of the covered platform under the act.

A valid notice and request for removal must include, in writing, (i) the identifiable individual’s physical or electronic signature; (ii) identification of, and information reasonably sufficient for the covered platform to locate, the intimate visual depiction of the identifiable individual; (iii) a brief statement that the identifiable individual has a good faith belief that the depiction is nonconsensual; and (iv) information sufficient to enable the covered platform to contact the identifiable individual. Upon receiving a valid request, a covered platform must remove the intimate visual depiction and make reasonable efforts to identify and remove any known copies of such depiction as soon as possible, but not later than forty-eight hours after receiving such a request. If the depiction is not removed, the identifiable individual may make a complaint to the FTC.

Covered Platforms

The TAKE IT DOWN Act defines a “covered platform” broadly as any website, online service, online application, or mobile application that serves the public and either primarily provides a forum for user-generated content—such as messages, videos, images, games, and audio files—or regularly publishes, curates, hosts, or makes available nonconsensual intimate visual depictions.

This definition clearly covers social media platforms but may also extend to other businesses that host messaging, image or video sharing, gaming, cloud computing, and other online service functionalities with user-generated content features. Due to the act’s broad definition of a covered platform, businesses that operate customer-facing digital platforms where users can post content may want to evaluate whether their platforms meet the act’s definition.

Statutory Exclusions and Safe Harbor

Certain categories of businesses are excluded, however, including broadband internet access providers, email services, and online services that consist primarily of content preselected by the provider, where any interactive functionality is incidental to that content. Excluded platforms may also lose their statutory exclusion if they make nonconsensual intimate visual depictions available in the ordinary course of business.

Notably, the act also provides a safe harbor for platforms that remove content in good faith, even if the content is ultimately determined not to be unlawful. There is no corresponding safe harbor for refusing to honor a removal request on the grounds that the content may not be unlawful, so platforms may want to take a conservative approach that favors early content removal. Additionally, to take advantage of the safe harbor, covered platforms may want to implement internal processes that document good-faith compliance efforts, including a record of all takedown actions.

What the TAKE IT DOWN Act Means for Employers

Businesses that qualify as covered platforms will need to establish notice-and-takedown processes and be prepared to process and honor valid requests according to the act’s strict timelines. But even businesses that are not covered platforms may want to note how the act can implicate workplace anti-harassment policies, particularly if a victim’s coworker is responsible for the publication or threats to publish the nonconsensual intimate images. If an employee reports that authentic nonconsensual intimate images or AI-generated deepfakes of them have been posted online without their consent, employers should take the complaint seriously and be aware of the tools available to remove the content. The act thus reinforces the need for employers to maintain clear policies addressing workplace harassment and acceptable use of AI tools and digital technologies. The FTC has also advised that businesses can help stop intimate images shared without consent from spreading further by using technologies such as hashing to prevent the reappearance of intimate content that has previously been identified and removed.

Additionally, employers may want to familiarize themselves with similar notice-and-takedown procedures for nonconsensual intimate imagery under state laws, which the TAKE IT DOWN Act does not preempt.

FTC Enforcement Priority

The FTC signaled its intent to enforce the act when, on May 11, 2026, it sent letters to major platforms reminding them of their obligation to comply fully with the TAKE IT DOWN Act. The FTC also launched TakeItDown.ftc.gov, a website where victims can submit complaints about platforms that have failed to act on valid requests for the removal of nonconsensual intimate images, or that have failed to create a process for people to request the removal of these images altogether.

Underscoring this warning, at the International Association of Privacy Professionals Global Privacy Summit 2026, FTC officials, including Commissioner Mark R. Meador, made clear that the commission views the TAKE IT DOWN Act as a priority for 2026. This should come as no surprise, given that the FTC has long focused on the heightened risks presented by AI deepfakes in the context of phishing scams and other forms of consumer deception.

Ogletree Deakins’ Cybersecurity and Privacy Practice Group will continue to monitor developments and will provide updates on the Cybersecurity and Privacy, Technology, and Workplace Violence Prevention blogs as new 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 

• On May 14, 2026, Colorado Governor Polis signed Senate Bill 26-189, which repeals and replaces the 2024 Colorado AI Act.
• The new law removes the 2024 act’s duty of care, risk management program, and impact assessment requirements in favor of a pre-use notice, a post-adverse-outcome disclosure, and a limited set of consumer rights tied to “covered ADMT.”
• “Consumer” expressly includes employees and Colorado resident job applicants, reaching workforce decisions the Colorado Privacy Act largely excludes (apart from its biometric data provisions).
• Contract terms that indemnify a developer or deployer against liability for its own antidiscrimination violations involving covered ADMT are void as against public policy.
• The law takes effect January 1, 2027.

The Colorado General Assembly’s passage of Senate Bill (SB) 26-189 closes two years of legislative wrangling over a law that had not yet taken effect. Governor Jared Polis signed the 2024 Colorado Artificial Intelligence (AI) Act in May 2024 only after publicly asking the legislature to revisit it during stakeholder review. After repeated session-long deadlocks and an interim Working Group convened by the governor in fall 2025, the legislature adopted the Working Group’s framework largely intact. Governor Polis signed the bill on May 14, 2026, and the law takes effect January 1, 2027.

For employers, SB 26-189 is both narrower in scope and broader in reach than the law it replaces. It eliminates the 2024 act’s most demanding compliance obligations, but it pulls employees and job applicants into a notice-and-rights regime that the Colorado Privacy Act expressly excludes.

Narrowing Scope and Covered Technology

SB 26-189 imposes compliance obligations on both “developers” (creators) and “deployers” (users, including employers) of AI, but it abandons the 2024 act’s broad reach over “high-risk artificial intelligence systems.” In its place is a broadly defined automated decision-making technology (ADMT) concept narrowed to “covered ADMT,” meaning ADMT used to materially influence a “consequential decision” in one of seven defined domains: education, employment, housing, financial or lending services, insurance, healthcare services, and essential government services.

The ADMT definition itself excludes a list of baseline technologies, including web hosting, firewalls, anti-virus and anti-malware software, spell-check, calculators, and spreadsheets that require human analysis and do not use machine learning, foundation models, or large language models. General purpose large language models are also excluded, but only where they are not specifically configured or marketed for use in consequential decisions and are subject to acceptable use policies that prohibit such use.

Specifying Covered Uses 

Obligations attach only when a covered ADMT is used to “materially influence” a “consequential decision” concerning a consumer, employee, or job applicant. “Materially influences” requires that the ADMT output (1) be a “non-de minimis factor” in the decision and (2) “affect the outcome of the decision, including by constraining, ranking, scoring, recommending, classifying, or otherwise meaningfully altering how the decision is made.” That standard is higher than the 2024 act’s “substantial factor” threshold, and the definition expressly excludes “incidental, trivial, or clerical uses.”

The new framework also expands the carve-outs from “consequential decision.” Out of scope are low-stakes or routine decisions; advertising and marketing, including content moderation and product recommendations; narrow procedural tasks; cybersecurity and fraud prevention activities; and routine academic administration. The definition further excludes use of an ADMT to “summarize, organize, or present information for human review” where the system does not produce a score, ranking, recommendation, classification, prediction, or other inference that materially affects the outcome. That last carve-out matters for the many employer use cases in which AI prepares materials but a human ultimately decides.

From Duties to Disclosures

SB 26-189 discards the 2024 act’s central machinery. There is no duty of reasonable care, no algorithmic discrimination notice to the attorney general, no risk management program requirement, no impact assessment, and no standalone obligation to tell consumers they are interacting with AI. What remains is a documentation, notice, and disclosure regime structured around three points of obligation.

First, developers of covered ADMT must provide each deployer with documentation describing intended and known harmful uses, categories of training data, known limitations, and instructions for appropriate use and meaningful human review, along with notice of material updates. Second, deployers must provide a clear-and-conspicuous pre-use notice. A prominent posting reasonably proximate to the consumer interaction (such as a link or notice at the point of engagement) will satisfy the requirement. Third, when a consequential decision results in an adverse outcome, deployers must provide a plain language post-adverse-outcome disclosure within thirty calendar days. On request following an adverse outcome, deployers must give instructions for accessing and correcting inaccurate personal data used in the decision and provide an opportunity for meaningful human review and reconsideration, “to the extent commercially reasonable.”

“Meaningful human review” has its own five-part definition. The reviewer must (1) have authority to approve, modify, or override the decision; (2) consider relevant available primary evidence; (3) be trained for the review function; (4) not default to the system output; and (5) have access to sufficient information to understand the output’s intended use, material limitations, and categories of inputs and principal factors, without disclosure of trade secrets, model weights, or proprietary source code. The “commercially reasonable” qualifier on reconsideration is significant for high-volume decisioning and is likely to be a focus of attorney general rulemaking.

Both developers and deployers must retain compliance records for at least three years. Coordination provisions allow Equal Credit Opportunity Act/Fair Credit Reporting Act (ECOA/FCRA)-compliant adverse action notices and Family Educational Rights and Privacy Act (FERPA)-compliant processes to satisfy overlapping requirements where applicable.

Employees and Applicants Are Covered

The provision employers should focus on is the definition of “consumer.” It incorporates the Colorado Privacy Act’s definition (a Colorado resident acting in an individual or household context) and then adds three further categories: employees; job applicants who are Colorado residents; and any individual whose access to, eligibility for, or opportunity in Colorado is evaluated in a consequential decision by a business operating in Colorado.

The Colorado Privacy Act does the opposite, generally excluding individuals acting in a commercial or employment context (subject to its biometric data provisions, which do apply to employee data). SB 26-189 closes that gap for AI-influenced employment decisions more broadly. An employer using a covered ADMT to materially influence a hiring, compensation, promotion, or similar decision about a current or prospective employee will owe the new notices and, after an adverse outcome, a right to correct inaccurate personal data and an opportunity for human review, none of which the Colorado Privacy Act provides to employees outside the biometric context. National employers running centralized recruiting for Colorado-based roles should note that the third category reaches out-of-state applicants evaluated for Colorado opportunities.

Enforcement, Liability, and Contracts

The attorney general retains exclusive enforcement authority. SB 26-189 replaces the 2024 act’s affirmative defenses with a sixty-day cure period: developers and deployers may cure within sixty days of a notice of violation to avoid civil penalties, and a timely cure completed during an enforcement action may still be considered as a mitigating factor in the court’s penalty determination. The attorney general may bypass the cure period for knowing violations or repeat offenders, and may seek injunctive relief regardless of the cure to prevent future violations.

SB 26-189 creates no private right of action. It also expressly preserves existing rights and remedies under state and federal law, including the Colorado Anti-Discrimination Act, the Colorado Consumer Protection Act, product liability law, and other applicable statutes. The use of an ADMT does not excuse any obligation or liability under existing antidiscrimination law; compliance with the new notice-and-disclosure regime is not a shield against claims under Title VII of the Civil Rights Act of 1964, the Colorado Anti-Discrimination Act, or analogous state statutes.

Liability between developers and deployers is several, not joint, with fault allocated based on relative responsibility. That allocation mechanism is a deliberate departure from the 2024 act, which imposed separate duties on each but did not specify how fault would be apportioned between them. (A proposal for joint and several liability did not survive the August 2025 special session.) A developer may face liability for an ADMT that “materially influences” a decision, but only to the extent the deployer used the ADMT in a manner consistent with its intended use, and the attorney general is authorized to issue regulations on the “materially influences” standard.

The provision with the most immediate practical impact is the bar on contractual liability shifting. Any contract term that indemnifies, defends, or holds a developer or deployer harmless against liability for its own antidiscrimination violations involving covered ADMT is declared contrary to public policy and void. Many enterprise AI vendor agreements contain mutual indemnities that are now partially unenforceable in Colorado as applied to these claims. The bill preserves the ability to obtain and recover under applicable insurance.

Sectoral Exemptions, With a Workforce Carve-out

Insurers subject to Colorado’s existing algorithmic discrimination insurance statute, and covered entities and their business associates subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), are largely exempt from the operative requirements. The carve-out does not extend to consequential decisions related to employment. Health systems and carriers using AI in hiring or other workforce decisions remain fully subject to the new law. The bill also addresses medical devices regulated by the Food and Drug Administration (FDA) and provides that nothing in the act requires disclosure of nonpublic personal information in violation of the Gramm-Leach-Bliley Act.

What It Means for Employers

Compared to the 2024 act, SB 26-189 should offer employers materially greater clarity. The framework eliminates the impact assessment and risk management program obligations, introduces a fault allocation regime, and requires the attorney general to give a sixty-day cure window in most circumstances. The narrower definitions of “covered ADMT” and “consequential decision” will keep many routine business uses outside the law’s operative reach.

Two caveats matter. First, bias audits are no longer required, but they remain important compliance tools. Discrimination liability under Title VII, the Colorado Anti-Discrimination Act, and analogous state laws exists regardless of whether a tool qualifies as a covered ADMT, and bias-testing evidence is explicitly relevant under California’s recently finalized Fair Employment and Housing Act (FEHA) regulations addressing AI in employment. Litigation involving AI tools in hiring continues to increase whether or not those tools fall within state AI statutes. Second, the indemnification ban means vendor contracts written on the assumption that the developer would absorb discrimination liability are now exposed.

Employers may want to consider taking the following steps before the January 1, 2027, effective date:

• inventorying current AI tools to identify which qualify as “covered ADMT” under the new definitions, with particular attention to hiring, compensation, and other workforce decision tools;
• reviewing AI vendor contracts for indemnification provisions that may be void under the new framework;
• evaluating whether existing human review processes satisfy the five-part “meaningful human review” standard, including override authority and required training;
• assessing post-adverse-disclosure infrastructure, particularly for high-volume hiring processes; and
• continuing or initiating bias auditing given that discrimination liability remains under existing law.

Federal Developments to Watch

Federal preemption pressure on state AI laws has increased over the past six months. President Donald Trump’s December 2025 executive order established a U.S. Department of Justice AI Litigation Task Force, and the White House’s National Policy Framework for Artificial Intelligence urges the U.S. Congress to broadly preempt state AI laws. Whether federal preemption legislation advances will significantly affect the Colorado framework’s longevity and practical reach. The attorney general’s rulemaking process began on May 14, 2026, with rules on post-adverse-outcome disclosures and consumer rights required by January 1, 2027; further rules clarifying the “materially influences” standard are permitted but not required.

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

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Quick Hits

• New high school curriculum initiatives are integrating occupational safety and health concepts into CTE courses to build hazard awareness and prevention skills in students before they enter the workforce.
• Students who complete these courses gain practical knowledge of OSHA standards, PPE, hazard recognition, and workplace security while also earning credentials such as OSHA ten-hour or thirty-hour cards that provide a tangible professional advantage before graduation.
• Early occupational safety education represents a promising investment in workforce readiness.

The primary goal of integrating occupational safety into high school curricula is to provide students with an opportunity to develop safety awareness in conjunction with occupation-specific coursework, building a strong foundation in the concepts that are critical to protecting individuals in the workplace, increasing safety and health, and reducing the occurrence of job-related injuries and fatalities. When students learn these principles before entering the workforce, they carry a mindset of hazard awareness and prevention with them throughout their careers.

Students who complete these courses gain practical knowledge of the Occupational Safety and Health Administration (OSHA) and its mission to ensure employers provide workplaces free from recognized hazards. They learn to identify types and explain appropriate use of personal protective equipment (PPE); recognize chemical, biological, ergonomic, and physical hazards; and understand the importance of emergency action plans and safety data sheets. These are not abstract academic exercises—they are skills that translate directly into safer behavior on job sites, in laboratories, and in offices.

Beyond immediate safety knowledge, early exposure opens doors to professional advancement. Students explore career options in occupational safety and compliance at various organizational levels and learn about credentials such as the Certified Safety Professional (CSP) and Associate Safety Professional (ASP) designations. Successful completion of the curriculum may even lead to students earning a ten-hour or thirty-hour general industry OSHA card, giving them a tangible credential before graduation.

One particularly noteworthy element of these curricula is the inclusion of workplace security and violence prevention concepts. Students are expected to identify and describe potential types of workplace security events, strategies to enhance workplace security, and strategies to prevent workplace violence. Teaching these sensitive topics to teenagers is both valuable and potentially challenging. On the one hand, equipping young people with the language and frameworks to recognize warning signs and de-escalation strategies empowers them as future employees and leaders. On the other hand, educators may want to ensure that lessons are thoughtful about age-appropriate delivery and the emotional impact of discussing violence in a school setting that may already be grappling with safety concerns of its own.

The Texas curriculum is extensive and addresses complex regulatory frameworks spanning OSHA standards and U.S. Environmental Protection Agency (EPA) regulations. Learning units cover everything from hazardous materials handling, fire suppression systems, to accident investigation phases—and school districts must ensure that instruction does not become superficial. Because the course must be taken concurrently with a Level 2 or Level 3 career and technical education (CTE) course and cannot be taken as a stand-alone course, scheduling logistics may present barriers for smaller school districts with limited resources.

The trend toward early occupational safety education represents a promising investment in workforce readiness. By meeting students where they are—in high school hallways and CTE labs—employers and educators can cultivate a generation of workers who view safety not as a regulatory burden, but as a professional value. The result, over time, should be fewer workplace injuries, stronger compliance cultures, and young professionals who are prepared to lead from day one.

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

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Quick Hits

• On May 22, 2026, Governor DeSantis signed HB 1407, which revises the procedural framework for civil actions and administrative remedies under the Florida Civil Rights Act (FCRA).
• HB 1407 aims to clarify timing issues and procedural ambiguities within the Florida Civil Rights Act, particularly regarding the commencement of civil rights claims and the role of administrative notices from federal and state agencies.
• The new law will take effect on July 1, 2026.

The new law clarifies a long-standing ambiguity within the FCRA. For years, litigants and courts have grappled with timing issues surrounding civil rights claims, particularly disputes over when a claim “commences,” and whether administrative notice from the U.S. Equal Employment Opportunity Commission (EEOC) tolls the filing deadlines under state claims.

FCRA Background and Confusion Before HB 1407

The FCRA prohibits discrimination in employment based on an individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. The FCRA applies to employers with at least fifteen employees. As with actions under Title VII of the Civil Rights Act of 1964, before filing a civil action under the FCRA, an aggrieved person must exhaust administrative remedies. In Florida, a workshare agreement between the EEOC and the Florida Commission on Human Relations (FCHR) allows a person to file a charge of discrimination with either agency, known as “dual filing.” Generally, the agency that directly receives the charge will investigate the claims, though under the workshare agreement, dual-filed charges preserve rights under both state and federal law.

If the charge is initially filed with the FCHR, the agency must investigate and determine whether there is reasonable cause to believe a discriminatory practice has occurred within 180 days of filing. If the FCHR determines there is reasonable cause, the aggrieved person may file a civil suit within one year of the determination or may seek an administrative hearing.

If the FCHR fails to make a determination within 180 days, the aggrieved person may file a suit in court. In these circumstances, the aggrieved person is required to file a lawsuit within one year of the date the FCHR certifies that it has notified the aggrieved person by mail of its failure to make a timely determination. However, despite earlier legislative attempts in 2020 to clarify the process, the FCHR does not always issue the certification after the expiration of 180 days, leaving the parties to litigate how long an aggrieved person has to file suit.

Adding to the confusion, if a charge is filed initially with the EEOC, the EEOC generally takes the lead in the investigation. Once the EEOC concludes its investigation, it will issue a notice of right to sue, which gives the aggrieved person ninety days to file suit in federal court. Historically, under the FCRA, a notice of right to sue has not been treated as a dismissal of the state claims and, without an independent certification from the FCHR, parties have been left confused as to when the FCRA’s one-year statute of limitations begins.

State courts have grappled with the uncertainty for years and have ruled inconsistently, creating even more confusion. For example, Florida’s Fourth District Court of Appeal has held that a notice of right to sue issued by the EEOC is sufficient to trigger the one-year statute of limitations under the FCRA. In contrast, the First District Court of Appeal recently ruled that the EEOC’s notice does not satisfy the FCRA’s notice requirement.

Why This Law Matters

HB 1407 reflects a legislative effort to streamline and clarify the FCRA’s procedural rules. By eliminating the registered‑mail requirement for certain FCHR communications, the legislature appears to be modernizing the administrative process and reducing technical disputes over service and notice. At the same time, the law makes it clear that claims brought under the FCRA would have to be commenced no later than one year after the date of determination of reasonable cause by the FCHR or the issuance of a notice of right to sue letter by the EEOC, whichever is earlier. In cases where neither agency makes a determination within 180 days, the law sets a strict filing deadline of eighteen months after the filing of the complaint.

Impact on Florida Civil Rights Act Claims

For employers, HB 1407 brings greater predictability—but also underscores the importance of compliance discipline. HB 1407 does not change what conduct is prohibited under Florida’s civil rights laws—but it does change how quickly disputes may reach the courthouse.

The law takes effect July 1, 2026, and will apply to actions filed on or after that date. Employers that proactively adjust their compliance and litigation‑readiness strategies will be better positioned to manage risk under the new framework.

Ogletree Deakins’ Miami and Tampa offices will continue to monitor developments and will provide updates on the Florida blog as additional information becomes available.

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Quick Hits

• USCIS releases new policy memorandum stating adjustment of status (AOS) applications are a matter of discretion and administrative grace, directing USCIS offices to consider all factors and closely scrutinize applications from individuals who would otherwise obtain permanent residence through consular processing abroad.
• Applying for adjustment of status is not inherently inconsistent while maintaining nonimmigrant status in a dual-intent category, such as H-1B or L-1, but does not grant a favorable exercise of discretion.
• AOS applications are to be reviewed by officers considering all relevant factors and information in the totality of the circumstances, including the possibility of consular processing abroad.

The memo directs USCIS officers to consider all relevant factors on a case-by-case basis, signaling that the agency will more closely scrutinize applications from individuals who could otherwise obtain permanent residence through consular processing abroad. The memo does not prohibit AOS applications and specifically reminds officers that adjustment of status is not inconsistent with dual-intent nonimmigrant visa status (such as H-1B/H-4 and L-1/L-2).

The new policy memorandum reviews how courts and the U.S. Congress have treated adjustment of status as an extraordinary act of administrative grace, allowing applicants to apply for permanent residency from within the United States rather than through consular processing of an immigrant visa at a U.S. embassy or consulate abroad. The policy memorandum reminds officers they are to consider all relevant factors and information in the totality of the circumstances in exercising that discretion.

Specifically, the policy memorandum directs officers when exercising their discretion to consider false testimony to government agencies, violations in applications for admission or parole, conduct of the applicant after admission as a nonimmigrant or parolee inconsistent with the purposes of that nonimmigrant status or parole or with representations to consular officers or U.S. Department of Homeland Security (DHS) officers, in determining whether extraordinary relief is warranted. Other factors to be considered in this discretion include family ties, immigration status and history, the applicant’s moral character, and any other relevant factors.

The policy memorandum further provides that applying for adjustment of status in a dual intent category, such as H-1B or L-1, is not inherently inconsistent while maintaining a nonimmigrant status. However, maintaining dual-intent status alone is not sufficient to warrant a favorable exercise of discretion.

If adjustment of status is denied on the basis of unfavorable discretion, officers must issue a denial notice containing an analysis of the positive and negative factors considered, along with an explanation as to why the negative factors outweigh the positive factors.

Key Takeaways

This policy represents a meaningful shift in how USCIS will evaluate AOS applications and may directly affect employer-sponsored green card cases. AOS applicants can anticipate increased scrutiny on their applications, with consular processing (or processing of the visa abroad at the consulate) as the preferred pathway for processing for individuals who do not warrant a favorable exercise of discretion. USCIS emphasizes that each decision remains individualized. Strong equities—such as long-term U.S. residence and family ties—remain relevant positive factors that officers must weigh against any adverse considerations.

Additionally, the policy remains unclear on a number of items and additional guidance is required, specifically:

• The memo does not indicate when AOS applicants will no longer be able to apply within the United States.
• The memo does not indicate the stance, or impact, if any, on the AOS applications that are already in progress.
• The memo does not clarify what AOS pathways will be available, and whether they will be restricting certain groups from applying for AOS.
• The memo does not address whether any specific factors will weigh more than others in this totality of circumstances test when adjudicating an AOS application.
• The memo also does not address what positive factors are enough to approve an AOS application within the United States and not require consular processing.

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

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