Quick Hits

• On May 8, 2026, the Fifth Circuit upheld a lower court’s decision to dismiss a disability discrimination claim because the plaintiff could not return to work in person, which was one of the essential functions of the job.
• The employer satisfied its obligation to provide a reasonable accommodation by offering telework two to three days a week, which the employee rejected.
• The employee’s inability to perform the essential job functions defeated causation for purposes of his retaliation claim.

Factual Background

The plaintiff worked for GStek, Inc., a federal contractor, as an IT systems administrator at Fort Polk’s Army Network Enterprise Center. He originally teleworked during the COVID-19 pandemic but was required to return to in-person work in February 2022 when the U.S. Army and GStek transitioned away from remote arrangements. After returning to the office, the plaintiff was diagnosed with autism, major depressive disorder, and social anxiety disorder. He requested full-time remote work as a reasonable accommodation in October 2022, but GStek denied the request because the Army had begun to implement a return-to-work policy that did not authorize certain contractors to telework. Instead, the company agreed to allow the plaintiff to work from home two or three days per week.

The plaintiff missed work due to mental illness and medication adjustments, and GStek discharged him in January 2023 based on absenteeism. In October 2024, the plaintiff sued the company for disability discrimination, failure to accommodate, and retaliation.

Court’s Analysis

Under the Americans with Disabilities Act, an essential predicate to a disability discrimination or failure-to-accommodate claim is that the individual be “qualified,” meaning he can perform the essential job functions despite his disability or that a reasonable accommodation would enable him to perform his essential job duties.

The Fifth Circuit concluded that the plaintiff was not “qualified” because he was unable to satisfy the requirement of in-person attendance, which was an essential function. “The Army determined that allowing full-time teleworking was not in its interests, and as an Army contractor, GStek had a business interest in honoring the Army’s conditions,” the court stated. The court reasoned that in-person attendance is presumed to be an essential function of most jobs, and the pandemic did not change that. The court further reasoned that remote work is not a reasonable accommodation if it interferes with a supervisor’s ability to supervise an employee.

Absent qualification, the plaintiff’s disability discrimination and failure-to-accommodate claims failed as a matter of law. Additionally, the court recognized that GStek satisfied any accommodation obligations it had by offering remote work for two to three days per week. GStek was not required to provide the plaintiff with his preferred accommodation because “it would represent a change to the essential functions of his job.”

As to retaliation, the court rejected the plaintiff’s argument that the three-month period between his accommodation request and his separation sufficed to show causation. Moreover, the court concluded that the plaintiff’s lack of qualification defeated his ability to show causation. “Without being a qualified individual, his request for accommodation was doomed, and that failed request cannot be the basis for a retaliation claim.”

The Fifth Circuit covers Louisiana, Mississippi, and Texas.

Key Takeaways

The Fifth Circuit’s opinion offers several takeaways, including the following:

• Documenting essential functions clearly. The court relied heavily on evidence that in-person attendance was an established requirement—backed by the Army’s contractual authority and the employer’s own judgment. Employers may want to review job descriptions to ensure they clearly articulate which functions are essential, including attendance and on-site presence where applicable.

• COVID-era telework does not set a permanent precedent. The court explicitly stated that temporarily permitting remote work during the pandemic does not mean employers have permanently altered a position’s essential functions or that telework is always a feasible accommodation. Employers that offered telework and have since returned to an in-person requirement might consider documenting the business reasons for that change.

• Engaging in an interactive process and offering alternatives. GStek was not required to grant the plaintiff’s preferred full-time telework accommodation. However, the fact that GStek offered a partial telework schedule (two to three days per week) seemingly strengthened its legal position. Thorough documentation of the interactive process, including any alternative accommodations offered, may be beneficial in defending later claims.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will post updates on the Employment Law, Leaves of Absence, Louisiana, Mississippi, Return to Work, and Texas blogs as additional information becomes available.

Tiffany Stacy is a shareholder in Ogletree Deakins San Antonio 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 Fifth Circuit rejected a plaintiff’s argument that the employer’s statement, “[Y]ou’re about to go on leave so … I can’t lose two people when you’re going to be taking leave soon,” constituted direct evidence of discrimination as it was too attenuated.
• The Fifth Circuit analyzed the plaintiff’s pregnancy discrimination claim under both the “but-for” and “mixed-motive” causation standards and found her evidence insufficient under either standard.
• The Fifth Circuit assumed without deciding that the mixed-motive standard applied to the plaintiff’s FMLA retaliation claim, declining to resolve an open question within the circuit regarding the applicable causation standard.

In Moreno v. Dealer Integrated Services, L.L.C., the Fifth Circuit agreed with the district court that Jocelyn Moreno failed to present sufficient evidence that her pregnancy was the reason for her dismissal and that her former employer, Dealer Integrated Services (DIS), met its burden to show it would have dismissed Moreno regardless of her request for leave, due to her disruptive behavior in the office.

Factual Background

Moreno worked as a payroll administrator for DIS, a car dealership services company, for approximately six years. In April 2023, Moreno informed her office manager, Deborah Devine, that she was pregnant and intended to take maternity leave in September. DIS promptly granted her request for two months of leave but did not inform her of her entitlement to a full twelve weeks under the FMLA.

The workplace at DIS was, by all accounts, “strained”—due in large part to Moreno. According to the company’s owner, Chad Roberts, Moreno refused to communicate with her coworkers Valerie De la Cruz and Patricia Mauricio, shut her office door to them, responded only to Devine, resisted taking on additional duties, and was “aggressive and hostile” when asked to train Mauricio to cover her upcoming absence. In late June 2023, Mauricio and De la Cruz told Devine they would resign unless Moreno was fired, citing the unpleasant work environment. Roberts and Devine then met with Moreno and terminated her employment. Roberts explained the decision, stating that “he wouldn’t be able to … lose two employees and have [Moreno] out as well.”

Moreno filed suit in March 2024, alleging pregnancy discrimination under Title VII, as well as FMLA retaliation, interference, and failure to provide individualized notice. The district court granted summary judgment for DIS on all claims, and Moreno appealed.

Analysis by the Fifth Circuit

Title VII Pregnancy Discrimination

The Fifth Circuit examined whether Moreno presented sufficient direct or circumstantial evidence that her pregnancy motivated her termination.

Direct evidence. Moreno relied on a statement Roberts made during the dismissal meeting: “[Y]ou’re about to go on leave so … I can’t lose two people when you’re going to be taking a leave here soon.” Applying the circuit’s four-part test for determining whether comments constitute direct evidence of discrimination, the court held that this statement was “too attenuated” to serve as direct proof. Citing Fifth Circuit precedent, the court reiterated that statements concerning leave require an inference that they are “code language” for pregnancy. Because an inference is required, such statements are not direct evidence of Title VII discrimination.

Indirect evidence. Under the McDonnell Douglas burden-shifting framework, the court assumed Moreno established a prima facie case but found she could not demonstrate pretext. DIS articulated legitimate, nondiscriminatory reasons for the dismissal: Moreno “refused to communicate with her coworkers in a job where communication was essential; she contributed to a ‘toxic’ work environment that led two colleagues to threaten to resign; and she refused to carry out some of the responsibilities of her position.” The court emphasized that Moreno’s evidence attempted to shift blame for the workplace dysfunction to others but reasoned that “the issue is not whether Moreno’s conduct was reasonable; rather, it is whether she was fired for that conduct as opposed to her protected basis.” In applying this rationale, the court reiterated the longstanding principle that “Management does not have to make proper decisions, only non-discriminatory ones.”

Moreno failed to present any evidence that DIS’s stated reasons for her dismissal were false or inconsistent. Finally, the court concluded that Moreno could not demonstrate her pregnancy was a motivating factor. Moreno’s admitted speculation that her coworkers threatened to resign because of her impending maternity leave—and not her conduct—was unsupported by the factual record. Additionally, Roberts’s statement at the dismissal meeting was simply an expression of the choice between Moreno and her coworkers, both of whom had threatened to resign.

FMLA Retaliation

The court applied similar reasoning to Moreno’s FMLA retaliation claim. Even assuming the mixed-motive framework applies—an open question in the Fifth Circuit—the court concluded that DIS met its burden of establishing that it would have fired Moreno regardless of any retaliatory motive. The court was persuaded that the interpersonal dysfunction was so extreme that two employees threatened to quit rather than work with Moreno, and that “the only reasonable conclusion a jury could make” was that DIS would have fired her “with or without retaliatory animus.”

FMLA Interference

The court found that Moreno could not establish the essential element of prejudice required for an interference claim. DIS granted all the leave Moreno requested. Moreover, adopting the reasoning of the U.S. Court of Appeals for the Tenth Circuit in Twigg v. Hawker Beechcraft Corp., the court held that an employee is not prejudiced by interference with forthcoming leave when she is legitimately discharged before that leave commences.

FMLA Notice

Finally, the court disposed of Moreno’s notice claim on the same prejudice grounds: an employee who is lawfully dismissed prior to the start of her entitled leave cannot show prejudice from a lack of individualized FMLA notice.

Practical Takeaways

The Fifth Circuit’s Moreno opinion demonstrates that an employee’s protected status or impending leave of absence may not be enough—standing alone—to result in liability where, as here, DIS had significant evidence of Moreno’s longstanding disruptive conduct. Additionally, this decision reinforces several important principles for employers:

First, references to an employee’s upcoming leave, standing alone, do not constitute direct evidence of pregnancy discrimination in the Fifth Circuit. Courts will not infer that “leave” is code for “pregnancy.”

Second, ideally, employers will be in the practice of documenting legitimate performance and conduct reasons as they occur, but as the court noted here, a “lack of contemporaneous documentation, alone, is not evidence of pretext.”

Third, the Fifth Circuit’s treatment of the FMLA interference and notice claims confirms that prejudice remains an essential element. Where an employee is lawfully dismissed before leave begins, interference and notice violations may not yield relief absent a showing of actual harm.

Finally, the McDonnell Douglas framework for analyzing Title VII claims remains binding law in the Fifth Circuit, despite growing calls from jurists within the circuit to reconsider the doctrine. The court acknowledged the “resounding chorus calling for a reconsideration of McDonnell Douglas” but held that it remained bound by the rule of orderliness.

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

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Quick Hits

• On May 7, 2026, Tennessee Governor Lee signed into law legislation that bans noncompete agreements for workers who earn less than $70,000 per year.
• The law will apply to agreements entered into, renewed, or amended on or after July 1, 2026.
• Noncompetes executed after July 1, 2026 for employees who do not meet the minimum annualized compensation will be void and unenforceable.

Under House Bill (HB) 1034, total annual earnings includes wages, salary, commissions, nondiscretionary bonuses, and other forms of remuneration. Annualized compensation for an hourly employee must be calculated by multiplying the employee’s hourly rate by forty and multiplying the product by fifty-two.

The legislation also introduces new rebuttable presumptions for the permissible duration of covenants not to compete. For employees and independent contractors, a noncompete clause lasting two years or less is presumed reasonable. For distributors, dealers, franchisees, lessees, and trademark licensees, three years or less is presumed reasonable. For sellers of a business or equity interest, either five years or the duration of earn-out or seller payments (whichever is longer) is presumed reasonable.  In addition, the legislation notes courts may modify a restrictive covenant to render it reasonable and enforceable.

Tennessee previously limited noncompete agreements for physicians to a duration of two years or less.

The new legislation does not affect the enforceability of nonsolicitation and nondisclosure agreements in Tennessee. The new law codifies existing common law that permits courts to modify a restrictive covenant to make it reasonable and enforceable.

Tennessee’s action is part of a growing trend with more states restricting the use of noncompete clauses. Maryland, Minnesota, Oregon, Virginia, and Washington recently enacted laws to limit restrictive covenants.

Next Steps

The legislation will take effect for noncompete agreements entered into, renewed, or amended on or after July 1, 2026. To ensure compliance with applicable state laws, employers in Tennessee should examine their existing noncompete agreements, evaluate their practices regarding which employees and positions are subject to noncompete agreements, and identify any employees making less than $70,000 per year. Standard forms and templates may need to be updated so that the stated duration will be deemed presumptively reasonable.

Nonsolicitation agreements and nondisclosure agreements remain important tools for employers seeking to protect trade secrets, proprietary information, and business interests.

Ogletree Deakins’ Unfair Competition and Trade Secrets Practice Group will continue to monitor developments and will post updates on the State Developments, Tennessee, and Unfair Competition and Trade Secrets blogs as additional information becomes available.

William S. Rutchow is a shareholder in Ogletree Deakins’ Nashville 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

• A new proposed rule from the U.S. Department of Labor (DOL), U.S. Department of Health and Human Services (HHS), and U.S. Department of the Treasury would allow employers to provide coverage for fertility treatments as a limited excepted benefit.
• Employees would be able to enroll in excepted benefit fertility coverage without having to enroll in the employer’s group health plan.
• This excepted benefit coverage would apply only to the diagnosis and treatment of medical infertility or related conditions.
• Comments on the proposed rule are due July 13, 2026.

Businesses would be permitted to offer fertility coverage as a limited excepted benefit, similar to the standalone dental and vision coverage that some employers offer, according to the proposed rule, which was issued by the U.S. Department of Labor, the U.S. Department of Health and Human Services, and the U.S. Department of the Treasury. Limited excepted benefits are not subject to requirements such as the Affordable Care Act (ACA) rules on annual and lifetime dollar limits and preventive services, the portability rules under the Health Insurance Portability and Accountability Act (HIPAA), and the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).

To qualify as an excepted benefit, the fertility coverage would have to be either provided under a separate policy, certificate, or contract of insurance, or not be “an integral part of a plan,” such as a self-insured plan. For this purpose, “not an integral part” means that employees could enroll separately in fertility benefits or the employer’s group health plan or both.

The proposed rule defines fertility benefits as coverage provided for the “diagnosis, mitigation, or treatment of infertility or infertility-related reproductive health conditions.” This description may include in vitro fertilization (IVF), intrauterine insemination, direct sperm injection, fertility medications, fertility counseling, or surgery to remove fibroids or unblock fallopian tubes. Because the proposed rule is limited to benefits in connection with infertility, excepted benefit programs would potentially exclude fertility treatment for same-sex couples or benefits that are not for the purpose of treating infertility, such as egg freezing that is not medically necessary. That may make benefits on a limited excepted benefit basis less generous than what some employers already provide through their group health plans.

Fertility benefits offered as a limited excepted benefit would be subject to a lifetime maximum of up to $120,000 per participant (including beneficiaries) with mandatory inflation adjustment each year. Notice requirements also apply, which would require the employer to provide a coverage description with a summary of benefits and coverage limitations, how to identify and utilize a network provider, and procedures for claims reimbursement.

The proposed rule follows a 2025 executive order that directed federal agencies to produce policy recommendations to increase access to IVF and reduce the out-of-pocket costs to patients.

State Laws

A growing number of states and the District of Columbia have passed laws requiring fully insured health plans to cover infertility diagnosis and treatments. California, Colorado, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Maine, New Hampshire, New Jersey, New York, Rhode Island, and Utah have laws that require certain health plans to cover in vitro fertilization or other fertility treatments, according to the Kaiser Family Foundation. Twenty-one states have laws that require health plans to cover fertility preservation, such as egg freezing or sperm freezing, when necessary because of a medical intervention like surgery, chemotherapy, or radiation. In some cases, religious employers may be exempt from state mandates to cover fertility treatments.

Next Steps

The deadline for the public to submit comments on the proposed rule is July 13, 2026.

Employers may wish to review their health plan designs and track the total number of employees receiving fertility treatments each year to assess what will best meet employees’ needs. If the proposed rule is finalized, then employers can consider whether providing a limited excepted benefit for fertility treatments would serve business objectives, such as boosting recruiting and retention.

Ogletree Deakins’ Employee Benefits and Executive Compensation Practice Group will continue to monitor developments and will post updates on the Employee Benefits and Executive Compensation and Healthcare 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.

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

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on state family and medical leave laws and pregnancy accommodation laws. Premium-level subscribers have access to comprehensive law summaries and updated policies, as well as detailed step-by-step guidance and templates for handling Pregnancy Accommodation Requests. 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.

Timothy J. Stanton is a shareholder in Ogletree Deakins’ Chicago office.

Ryan B. Kadevari is an associate in Ogletree Deakins’ Los Angeles 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

• Under German labor law, employees claiming unequal treatment in relation to a “comparator” must specifically demonstrate in court that they perform the same or equivalent work as the comparator.
• Anyone seeking to sue for “equal hourly wages” must specifically demonstrate the number of working hours on which their own monthly salary is based; without a verifiable gross hourly wage for the plaintiff, a comparison with the comparator’s gross hourly wage is not possible.

The Case—Information First, Payment Later

A female veterinarian demanded information and then back pay for alleged pay differences compared to male colleagues who received higher wages than she did. The BAG ultimately dismissed the lawsuit—in particular because key information regarding the comparability of the jobs was missing.

For several years, the employee had received a monthly base salary of EUR 3,900 gross as a salaried veterinarian at her father’s veterinary clinic. Her male veterinarian colleague—her brother—whom she used as a comparator received a significantly higher amount, EUR 7,100. To quantify her claims for payment, she filed a two-stage action (Stufenklage): In the first stage, the employer was to provide her with information regarding the gross hourly wage paid to all male veterinarians. In the second stage, she was to be paid the difference between that amount and the gross hourly wage she had received.

The Decision—No Pay Comparison Without Reliable Data

The veterinarian was unsuccessful with her claim both at the Hameln Labor Court and on appeal at the Lower Saxony Regional Labor Court. The 8th Senate of the BAG dismissed the veterinarian’s appeal, thereby upholding the lower courts’ dismissals of her claims. The BAG opinion clarifies: Under relevant European Union law, a party must demonstrate and prove that her employer pays her a lower wage than a male colleague. This can only be achieved if it is specifically demonstrated that she and the colleague perform the same or at least equivalent work. If the employee succeeds in doing so, there is prima facie evidence of discrimination, with the result that the employer would then have to prove that the pay difference is not based on gender discrimination.

In this specific case, the BAG held that the veterinarian was required to specify her gross hourly wage based on the actual hours worked. A general assertion that she worked “full-time” was insufficient here, particularly since the employer had argued that she worked only twenty hours per week. The veterinarian also failed to provide sufficient evidence regarding the equality or equivalence of the respective duties performed. She was required to indicate the extent to which she and her brother both performed the same tasks, e.g., “management duties.”

Clarification of the Burden of Presentation

The decision clarifies that an employee alleging unequal pay must provide specifics at the pleading stage. The BAG opinion also emphasizes, however, that the principles of the burden of proof are not “overstretched”—they are procedural minimum requirements that are also justified in light of EU law and the German Pay Transparency Act.

Outlook—New EU Requirements on Pay Transparency

The decision does not preclude upcoming changes under the EU Pay Transparency Directive (EU) 2023/970. The directive, which must be implemented by June 7, 2026, will introduce, among other things, a reversal of the burden of proof for employers, expanded rights to information regardless of company size, and reporting obligations for companies with one hundred or more employees, making opaque pay structures a significant liability risk in the future.

For further background on pay transparency, please see our article “Pay Transparency: Update for Employers in Germany.” Additional information and updates on the progress of the EU Pay Transparency Directive (EU) 2023/970 can be found using Ogletree Deakins’ Member State Implementation Tracker.

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

Lena Beyer, LL.M. (Tokyo), is an associate in the Berlin office of Ogletree Deakins.

Lela Salman, a law clerk in the Berlin office of Ogletree Deakins, contributed to this article.

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Quick Hits

• On May 12, 2026, the DOL announced temporary enforcement relief for retirement plan administrators that make good faith efforts to follow the new paper pension benefit statement rules.
• The policy allows plan administrators to rely on reasonable interpretations of the proposed rules until the DOL issues final guidance.
• Plan sponsors using electronic delivery may want to consider giving newly eligible participants an initial paper notice about their right to request paper documents.

Background

Section 105(a)(2) of ERISA through Section 338(a) of the SECURE 2.0 Act of 2022 (SECURE 2.0) requires that defined contribution plans furnish at least one pension benefit statement on paper in any calendar year and that defined benefit plans generally must furnish at least one paper pension benefit statement every three calendar years. Subparagraph (E) requires that statements be provided on paper at least once per year by defined contribution plans and once every three years by defined benefit plans. The paper benefit statement requirement added by SECURE 2.0 is effective for plan years beginning after December 31, 2025.

Prior to SECURE 2.0, the EBSA had provided two safe harbors for compliance with the pension benefit statement requirements. The 2002 Electronic Disclosure Safe Harbor permits the statements to be provided electronically to participants whose integral work duties put them in a position to effectively access electronic disclosures and to participants who affirmatively consent to electronic disclosures. The 2020 Alternative Safe Harbor permits electronic delivery of the statements to participants who have provided a valid electronic address to the plan sponsor, including those assigned an electronic address by the employer.

On February 25, 2026, the DOL issued a notice of proposed rulemaking (“Requirement to Provide Paper Statements in Certain Cases—Amendments to Electronic Disclosure Safe Harbors”) addressing the new requirements, as required by SECURE 2.0. The two safe harbors will continue to apply, thereby allowing employers to continue to use electronic delivery and avoid the paper statement requirement, with respect to participants who first became eligible to participate and beneficiaries who first became eligible for benefits on or before December 31, 2025. However, those who became eligible on or after January 1, 2026, must receive a one-time initial notice on paper informing them of their right to request that all documents be furnished on paper prior to delivering the required pension benefit statement through electronic delivery.

Temporary Enforcement Policy

Under the FAB, the DOL wishes to provide clarity and assurance to plan administrators in the absence of final regulations. To address concerns regarding the lack of clear guidance, the DOL has established a temporary enforcement policy. Until after the DOL issues final regulations or other applicable administrative guidance, the DOL, as an enforcement policy, will not take enforcement action against plan administrators that comply in good faith with a reasonable interpretation of the provisions set forth in the notice of proposed rulemaking released February 26, 2026. Additionally, the DOL will not take enforcement action against plan administrators that comply in good faith with a reasonable interpretation of Section 105(a)(2)(E) of ERISA pending the adoption of a final rule (for example, plan administrators may furnish the pension benefit statement described in Section 105(a)(2)(E) of ERISA in accordance with the current regulation under 29 CFR § 2520.104b-1(c)).

Plan sponsors that generally deliver pension benefit statements via electronic delivery may want to provide a one-time initial notice, as outlined in the proposed regulations, to any participants and beneficiaries who are newly eligible during the 2026 calendar year.

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

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

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

Chris Moyers, a paralegal in the Richmond office of Ogletree Deakins, contributed to this article.

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Quick Hits

• A new law in Nebraska (Legislative Bill 921) requires employers with one hundred or more workers to provide notice at least ninety days before a mass layoff or business closing.
• The law stipulates certain information that must be included in the layoff notices and how the notices may be delivered.
• The law will take effect on July 18, 2026.

Nebraska’s mini-WARN Act, enacted under Legislative Bill (LB) 921, defines “mass layoff” as a “reduction in employment force that is not the result of a business closing and results in an employment loss at a single site of employment during any thirty-day period of one hundred or more employees,” not including part-time employees.

A business closing means “the permanent or temporary shutdown of a single site of employment of one or more facilities or operating units that will result in an employment loss for one hundred or more employees, other than part-time employees.”

The law defines “employment loss” as an “employment termination, other than a discharge for cause, voluntary separation, or retirement; a layoff exceeding six months; or a reduction in hours of more than 50 percent of work of individual employees during each month of a six-month period.” This does not include instances when a business closing or mass layoff is the result of a relocation or business consolidation, and the employee has an opportunity to transfer within a reasonable commuting distance with no more than a six-month break in employment.

The definition of “Part-time employee” includes employees who are employed for an average of less than twenty hours per week and any employees, including full-time employees, who are employed for less than six of the twelve months preceding the date on which notice is required.

Ninety days prior to the implementation of a mass layoff or covered business closing, WARN notices must be provided to affected employees or their bargaining representative, if unionized, and the Nebraska Department of Labor (NDOL). The Nebraska WARN notices must contain the following information:

• the name and address of the worksite where the business closing or mass layoff will occur;
• the name and telephone number of a company official to contact for further information;
• a statement indicating whether the planned action is expected to be permanent or temporary and, if the entire business is to be closed, a statement to that effect;
• the expected date of the first employment loss and the anticipated schedule for employment losses;
• the job titles of positions to be affected and the names of all employees currently holding the affected jobs; and
• copies of all employee handbooks, personnel policies, and employment-related policies applicable to the affected employees, or a statement identifying the specific online location where such handbooks or policies can be accessed.

In addition, the notice provided to the NDOL must contain the addresses of affected employees and, if applicable, a statement that the employees are covered by a collective bargaining agreement.

Employers may send written notices by any reasonable method designed to ensure receipt at least ninety days before a layoff, including by first-class mail, email, online company portal, or inserting the notice into pay envelopes. The employer also must post the notice in a conspicuous location in every language spoken by at least 5 percent of the workforce.

For WARN calculations and notice purposes, it is recommended that remote employees be included with the location assigned as their home base, the location from which their work is assigned, or the worksite to which they report. Even though part-time employees are not included in the calculation for triggering WARN notice requirements, they are entitled to receive advance notice of a mass layoff or business closing when they are impacted.

Additional notice is required when the date of the planned closing or mass layoff changes. Postponements of thirty days or less from the originally announced date require notices to include reference to the earlier notice, the date to which the planned action is postponed, and the reasons for the postponement. Postponements of more than thirty days require entirely new notices. When the subsequent notice is given, the employer must provide an explanation for why it reduced the notice period.

Nebraska’s law provides an exception to the notice requirements for business closings and mass layoffs if there is a natural disaster (such as an earthquake, flood, tornado, storms, or drought) or unforeseeable business circumstances, meaning a circumstance “caused by some sudden, dramatic, and unexpected action or condition outside the employer’s control.” For business closings only, the notice period is not required when the business closing follows failed efforts to obtain adequate capital or financing.

Nebraska’s law differs from the federal Worker Adjustment and Retraining Notification (WARN) Act in certain details. Nebraska specifically permits pay-in-lieu of notice. The federal law does not preempt Nebraska’s law. Nebraska is one of a growing number of states that have enacted their own mini-WARN Acts in recent years, including Maryland, Ohio, and Washington. Many of the state laws have more stringent requirements than those in the federal law.

Next Steps

Nebraska’s WARN provisions will take effect on July 18, 2026. Employers may wish to ensure that their records of employees’ names, job titles, and locations are accurate. They may wish to update any notice templates and posters to ensure compliance with the new law. For businesses planning a reduction in force in the near future, it may be necessary to adjust the timing to allow for a ninety-day notice period. Aggregation of multiple reductions in force during a ninety-day period may be required.

Employers that violate the state law may be fined up to $100 for each day of the violation. There is no private right of action under the Nebraska mini-WARN law.

Ogletree Deakins’ RIF/WARN Practice Group will continue to monitor developments and will post updates on the Nebraska and Reductions in Force blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal covers updates on a wide range of state and federal laws on Terminations and Reductions-in-Force, including WARN and mini-WARN laws such as Nebraska’s new law. The Portal will soon feature new notice documents, available to Advanced and Premium subscribers, who also have access to step-by-step Task walkthroughs on Terminations and RIFs and Closures. All clients have access to snapshots and updates. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

David L. Zwisler is a shareholder in Ogletree Deakins’ Denver 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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Time is Ticking on the 119th Congress. Both the U.S. Senate and U.S. House of Representatives returned to Washington, D.C., after being out last week. Believe it or not, with the mid-term elections, scheduled breaks, and holidays, there are not many days left in the 119th Congress in which the Senate and House will both be present in Washington, D.C. For example, there are only twenty-four such days until the August Recess, thirty-five such days until current government funding expires, and thirty-six such days until the midterm elections. Following the elections, there will be a lame-duck legislative session lasting approximately four weeks. Congress has a lot to do and little time to do it. And because all bills expire at the end of this current Congress (on January 3, 2027), these next few months could be a period of significant legislative activity, though most employment-related bills are still unlikely to be enacted, mostly due to the legislative filibuster in the Senate.

DOL Officially Reinstates 2019 Overtime Regulations. The U.S. Department of Labor (DOL) performed some regulatory housekeeping this week as a result of its recent decision to drop its defense of the 2024 Fair Labor Standards Act overtime regulations. On May 15, 2026, the DOL published a final rule in the Federal Register that scrubs the Code of Federal Regulations (CFR) to remove the Biden-era regulation promulgated in 2024 and to reinstate the 2019 regulations issued during the first Trump administration. The 2019 regulations have been the standard that the DOL has enforced since the Biden-era rule was vacated in November 2024. As the notice describes, “[T]his final rule merely conforms the text in the CFR to reflect the courts’ vacatur of the 2024 rule by removing the 2024 rule regulatory text and replacing it with the text from the 2019 rule.” Keith E. Kopplin and Zachary V. Zagger have the details.

“Faster Labor Contracts Act” Picks Up Steam. The Buzz is monitoring the ongoing effort in the House to force a vote on the Faster Labor Contracts Act. The pending discharge petition has been signed by 214 representatives—just 4 signatures short of the 218 required to force a vote on the House floor. Four Republicans have now signed the petition.

House Lawmakers Examine Workplace Safety Innovations. On May 13, 2026, the House Subcommittee on Workforce Protections held a hearing, titled, “Building a Safer Future: Private-Sector Strategies for Emerging Safety Issues.” The hearing focused on how employer-sponsored initiatives, such as the adoption of new technologies, can advance workplace safety even in the absence of prescriptive standards. Ogletree Deakins shareholder, Melissa K. Peters, who testified at the hearing, warned against the Occupational Safety and Health Administration’s (OSHA) preference for prescriptive rulemaking, which takes too long and is “too rigid to keep pace with technology and too broad to reflect the disparateness of the regulated workforce.” Instead, Peters advocated for performance-based or goal-focused standards that allow employers to “calibrate their programs to the actual hazards they face and let[] recent technology satisfy the rule without waiting for OSHA to catch up.” According to Peters, OSHA’s pending heat injury and illness prevention standard would benefit. Peters further recommended that OSHA take a performance-based approach, should the agency choose to proceed with its pending heat injury and illness prevention standard.

House to Vote on Student-Athlete Reform Bill. Next week, the House is expected to vote on the “Student Compensation and Opportunity through Rights and Endorsements (SCORE) Act,” which would set new rules for the college athletics landscape. This includes protecting student-athletes’ ability to enter into “name, image, and likeness” (NIL) licensing agreements, changing coaches’ hiring timelines, and setting a five-year eligibility cap for student-athletes. But at the Buzz, we are most interested in provisions of the bill that would expressly prohibit student-athletes from being classified as “employees.” This bill came close to a floor vote in the House several months ago, but it was pulled at the last minute. The Buzz will have more on this next week.

Discharge Deep Dive. The House rule allowing members to discharge bills stuck in committees, as discussed above in relation to the Faster Labor Contracts Act, is a relatively new congressional phenomenon. The first iteration of the rule was adopted in 1910 as part of a series of maneuvers to check the power of then-Speaker Joseph Cannon, a Republican from Illinois. The process has changed over the ensuing years. In the 1930s, the number of required signatories was lowered from 145 (one-third of the House) to 218—a simple majority. The signatories to discharge petitions were never publicly disclosed until a 1993 rule change championed by then-representative James Inhofe of Oklahoma made the entire process transparent.

Measuring the success of discharge petitions has proved difficult, as the filing of a petition sometimes prompts leadership to take up the underlying bill, and the petition effort is subsequently abandoned. However, at least one estimate claims that of the 635 discharge petitions filed between 1935 and 2023, less than 4 percent have garnered the necessary 218 signatories. Of those, only four discharge efforts—at most—have ever resulted in enacted legislation during that time frame. The first of these successful efforts was the Fair Labor Standards Act of 1938, a frequent topic here at the Buzz.

Employers should not assume that current reporting obligations have changed until the EEOC takes further action. Employers may wish to monitor OMB and EEOC developments as this proposal raises questions about the timing of the 2025 EEO-1 filing cycle and as to whether these reports will be collected.

This is a developing story. Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group and Government Contracting and Compliance Practice Group will continue to monitor developments and provide updates on the Diversity, Equity, and Inclusion Compliance and Government Contracting and Compliance blogs as additional information becomes available.

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

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Quick Hits

• Golf courses and resorts tend to rely on seasonal hiring for the summer.
• Overtime pay, minimum wage, and child labor laws typically apply to part-time, seasonal workers.
• Golf resorts have legal obligations to prevent workplace safety hazards, including the risk of heat-related illness.

Arizona, California, Florida, Michigan, and South Carolina have abundant golf tourism and high concentrations of golf courses. During the warmer months, golf facilities often rely on seasonal hiring and a significant influx of temporary staff to work as caddies, cart attendants, pro shop clerks, groundskeepers, bartenders, and restaurant servers.

Many seasonal employees are hourly workers who may qualify for overtime pay and minimum wage under federal, state, or local laws. The minimum wage and child labor laws vary widely by state. Some states restrict the total number of hours minors can work per week, and that threshold may be different when school is not in session. Some states require permits for minors to work, and others don’t.

Employers that fail to pay minimum wage or overtime in violation of the Fair Labor Standards Act (FLSA) may be subject to fines, back pay, liquidated damages, and attorneys’ fees. Violations of child labor laws can result in fines of up to $16,000 or criminal prosecution.

Caddies, beverage cart attendants, restaurant servers, and bartenders are often tipped positions. If the employer takes a tip credit from the minimum wage in a state where a tip credit is permitted, it’s important to make sure (1) that all tips, whether paid by credit card, electronic payment, or cash, are documented sufficiently to ensure that the employee earns at least the minimum wage for each hour worked when tips are taken into account; (2) that if there is a tip pool arrangement, improper employees are not included in the tip pool; and (3) the employer does not retain any portion of the tips paid to the tipped employees.

Improperly including supervisors, managers, or employees who do not customarily and regularly receive tips (e.g., people who repair or wash golf carts or stock beverages on those carts, but don’t serve them) may invalidate the tip pool, and thus the tip credit, for all affected employees.

Workers With Visas

Many employers in the hospitality and tourism industries rely on foreign workers during peak seasons. The H-2B visa program allows U.S. employers to hire foreign citizens for temporary, seasonal, nonagricultural jobs. Employers seeking H-2B visas must establish that they have a seasonal need and that there are not enough U.S. citizens who are willing, able, and qualified to do the seasonal work.

The H-2B program is coordinated by the U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) and requires approval from both agencies. An employer must obtain an occupational classification and prevailing wage from the DOL, obtain certification on their temporary need, and then petition for approval from USCIS. To receive an H-2B visa, foreign workers must have a valid, temporary job offer, meet the requirements for the position, and if needed, obtain an H-2B visa. Workers must be paid at least the prevailing wage set by the DOL.

H-2B slots are allocated based on a lottery system, and for the last several years demand has greatly exceeded supply. If employers are interested in this option for a temporary workforce, the process should be started at least six months in advance.

Workplace Safety

The general duty clause of the Occupational Safety and Health (OSH) Act requires employers to maintain a workplace free from recognized hazards causing or likely to cause death or serious physical harm. That may include hazards related to heat exposure, golf carts, lawnmowers, and chemical exposure from pesticides and fertilizers.

They can reduce risks by providing rest breaks, shade, and personal protective equipment, such as gloves, safety goggles, and steel-toed boots. They also can decrease risks by enforcing golf cart safety rules for employees and completing regular maintenance for golf carts and landscaping equipment.

Next Steps

Golf facilities hiring seasonal workers may wish to review their minimum wage and overtime pay policies and practices to ensure compliance with local, state, and federal laws. They may wish to coordinate with third-party payroll vendors to ensure accurate recordkeeping and proper payments.

Golf facilities may wish to promptly address any foreseeable workplace hazards and take internal reports about workplace hazards seriously. They may wish to regularly train managers and employees on heat illness prevention, safe equipment handling, safe chemical application, emergency procedures, and first aid.

Ogletree Deakins’ Hospitality Practice Group will continue to monitor developments and will post updates on the Employment Law, Hospitality, Immigration, Wage and Hour, and Workplace Safety and Health blogs as additional information becomes available.

Marissa E. Cwik is a shareholder in Ogletree Deakins’ Denver office.

R. Scott Deluca is Of Counsel in Ogletree Deakins’ Buffalo office.

Christopher P. Hammon is a shareholder in Ogletree Deakins’ Miami 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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