Quick Hits

• The Trump administration released an AI policy framework, largely reiterating the administration’s previously stated policy goals to promote AI.
• In particular, the framework urges Congress to establish preemption of state and local regulations to promote innovation.
• The likelihood of these policy goals being fully implemented is uncertain at this time.

The “National Policy Framework for Artificial Intelligence” provides broad, overarching legislative recommendations for Congress for governing the development and deployment of AI technology. The framework is the latest effort by the Trump administration to set policy around AI and largely reiterates the administration’s stated policy goals as expressed through a series of executive orders (EOs) issued since the president took office in January 2025. However, it is unclear whether there is sufficient support in Congress for such a framework, and implementation appears unlikely at this time.

This framework further signals the current U.S. position in the global debate as to whether AI regulations prioritize encouraging innovation or protecting individual rights and freedoms. The EU AI Act, for example, focuses on the latter.

Proposed AI Framework

The new framework is organized around “Seven Pillars” that emphasize protecting children, communities, creators, and free speech; maintaining U.S. innovation; and promoting workforce development and AI-ready education. Of note for employers, the framework reiterates the administration’s push for federal preemption of state and local laws on AI and urges Congress to establish preemption, reflecting an acknowledgment that setting such policy may require congressional action.

Specifically, the framework urges Congress to “ensure that State laws do not govern areas better suited to the Federal Government or act contrary to the United States’ national strategy to achieve global AI dominance.” The framework indicates that states should not be permitted to regulate AI development, characterizing it as “an inherently interstate phenomenon with key foreign policy and national security implications.” Further, it asserts that states should not unduly burden the lawful use of AI or penalize AI developers for a third party’s unlawful conduct involving their models.

At the same time, the framework recommends against the formation of any new federal agency, calling on Congress to refrain from creating “any new federal rulemaking body to regulate AI.” Instead, the framework calls on Congress to “support development and deployment of sector-specific AI applications through existing regulatory bodies with subject matter expertise and through industry-led standards” and “provide AI resources to small businesses, such as grants, tax incentives, and technical assistance programs, to support wider deployment of AI tools across American industry.”

Key Takeaways

The White House’s new framework is the latest expression of the Trump administration’s ongoing efforts to address AI. If implemented, the framework could have significant implications for employers navigating the current landscape of state and local AI regulations. Several states and municipalities—including California, Colorado, Illinois, Texas, and New York City—have already enacted laws or regulations that directly affect how employers use AI in hiring, promotion, and other employment decisions. At the same time, federal preemption of AI laws and regulations could raise questions about employers’ duties to protect against unlawful discrimination under long-standing state and federal antidiscrimination laws. For multinational employers, it could also create cross-border compliance tension, as many countries are restricting the use of AI in employment.

That said, it appears unlikely that Congress will act on this policy framework, at least in the short term. To date, the mandates in the Trump administration’s EOs have not been implemented, particularly with respect to identifying “onerous” state laws.

Ogletree Deakins’ Cybersecurity and Privacy Practice Group and Technology Practice Group will continue to monitor developments and will provide updates on the Cybersecurity and Privacy, Diversity, Equity, and Inclusion Compliance, Employment Law, Governmental Affairs, and Technology 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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Mullin It Over. This week, the U.S. Senate Committee on Homeland Security and Governmental Affairs advanced the nomination of Senator Markwayne Mullin (R-OK) to serve as the next secretary of homeland security. The committee’s 8–7 vote in favor of the nomination broke mostly along party lines, though Senator Rand Paul (R-KY) voted against Mullin’s nomination, while Senator John Fetterman (D-PA) voted for it. Accordingly, the next procedural step will be a confirmation vote on the Senate floor. President Donald Trump nominated Mullin on March 5, 2026, to replace outgoing Secretary Kristi Noem, who is scheduled to step down as homeland security secretary on March 31, 2026.

DOL Joint-Employer Proposal on the Move. On March 16, 2026, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) sent to the Office of Information and Regulatory Affairs (OIRA) a proposed rule titled, “Joint Employer Status Under the Fair Labor Standards Act FLSA, Family and Medical Leave Act, and Migrant and Seasonal Agricultural Worker Protection Act.” At this stage of the rulemaking process, the proposal is not publicly available, but according to the abstract on OIRA’s website, the proposal “would guide WHD’s enforcement of [Fair Labor Standards Act (FLSA)] joint employer liability, and help promote greater uniformity among court decisions nationwide.” During the final year of President Trump’s first administration, the DOL issued a regulation for determining joint-employer status under the FLSA, the major portions of which (i.e., the regulation) were vacated by a federal district court. The Biden administration subsequently rescinded the rule in July 2021.

Employer Groups Seek NLRB’s Return to Employee-Focused Representation Process. After the Sixth Circuit Court of Appeals’ recent decision striking down a 2023 National Labor Relations Board (NLRB) decision that had upended the standard for union representation, on March 12, 2026, thirteen employer associations filed a petition for rulemaking, asking the Board to abrogate the same case. According to the petition, the Board’s 2023 case should be rescinded because it established a representation process that “operates to completely nullify employees’ choice as expressed in a Board-supervised secret-ballot election and does so with no clearly articulated or rational standard for doing so.” The rulemaking petition further requests that the Board promulgate a rule to restore the Board’s long-standing representation process, consistent with Supreme Court of the United States precedent, that emphasizes a preference for secret-ballot elections as the most reliable indicator of employee choice.

The lack of an affirmative third vote on the Board continues to prevent it from reversing Biden-era adjudications, but the Board’s rulemaking powers are not similarly constrained. Thus, rulemakings provide a potential avenue for the Board to rebalance the labor-management policy landscape even with only two affirmative votes.

House Committee Advances Bill to Curb Frivolous ERISA Suits. This week, the House Committee on Education and Workforce approved the “ERISA Litigation Reform Act” (H.R. 6084).The bill responds to the proliferation of meritless and costly prohibited-transaction class action lawsuits filed under the Employee Retirement Income Security Act (ERISA). Plaintiffs’ counsel often engineer these purpose-built lawsuits to extract large settlements from defendants (e.g., an employer ERISA-plan sponsor, a plan service provider, etc.), while class members sometimes receive minimal recoveries. Specifically, the bill responds to a 2025 Supreme Court decision by amending ERISA to require plaintiffs to survive a motion to dismiss to prove that the alleged prohibited transaction they are challenging is not exempt under the statute. The legislation would also automatically pause discovery while the court considers the defendant’s motion to dismiss.

Bill Would Exempt Healthcare Workers From $100,000 Visa Fee. This week, a bipartisan group of House lawmakers introduced the “H–1Bs for Physicians and the Healthcare Workforce Act,” a bill to exempt any individual “who is employed (or has received an offer of employment) in the health care workforce” (as defined in the Affordable Care Act) from President Trump’s proclamation issued on September 19, 2025, “Restriction On Entry Of Certain Nonimmigrant Workers.” The bill would also prohibit any new H-1B-related fees that are not authorized by Congress from being levied against healthcare workers. Proponents of the legislation argue that the $100,000 H-1B fee will negatively affect the delivery of healthcare services, as the industry is already experiencing significant workforce shortages.

PBGC Relaunches Opinion Letters. This week, the Pension Benefit Guaranty Corporation (PBGC) relaunched its opinion letter program. According to the accompanying announcement, “[t]hese opinion letters will provide the Corporation’s views on the meaning of the provisions of Title IV of the Employee Retirement Income Security Act and their application to individual fact patterns.” The relaunch of the program is consistent with other DOL agencies’ renewed focus on opinion letters.

Friends of Ireland. On March 17, 2026—St. Patrick’s Day—President Trump and Speaker Mike Johnson hosted Taoiseach of Ireland, Micheál Martin, for the annual Friends of Ireland Luncheon in the U.S. Capitol. The annual tradition dates to 1983, when it was started by President Ronald Reagan and Thomas P. “Tip” O’Neill Jr. (Since 1987, the event has included the Taoiseach of Ireland.) The Friends of Ireland Luncheon celebrates the long-standing friendship between the United States and Ireland. Indeed, no other foreign country claims as many native sons and daughters—122—who have served in the U.S. Congress. (England is second, but not even close, with 58 members.) This includes current U.S. Representative Sean Casten (D-IL), who was born in Dublin, as well as County Wicklow, Ireland–born Matthew Lyon (1749–1822), later of Vermont and Kentucky, the only member of Congress to win an election while in jail. Several Founding Fathers—Matthew Thornton of New Hampshire, James Smith of Pennsylvania, and George Taylor of Pennsylvania—were born in Ireland and signed the Declaration of Independence. Similarly, Irish-born signatories to the U.S. Constitution included Pierce Butler of South Carolina, James McHenry of Maryland, and Thomas Fitzsimons of Pennsylvania.

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Quick Hits

• General contractors must conduct inspections across the entire jobsite—including hard-to-access areas and spaces where only subcontractors are working.
• An employer’s unawareness of a hazard does not insulate it from liability for failing to identify, evaluate, and correct that hazard.
• Employers may want to investigate the safety records of all subcontractors, not just those with whom they have direct contracts.

Facts

KPRS Construction Services, Inc., of Brea, California, is a general contractor for commercial construction projections. As a general contractor for large projects, it routinely engages multiple subcontractors, who then engage subcontractors themselves.

In July 2018, KPRS was building a 500,000 square foot refrigerated warehouse with an adjacent 25,000 square foot mechanical building. KPRS contracted with A.G. Construction to complete the concrete work, Angle Iron Works to complete structural iron work, and C & L Refrigeration to complete HVAC work.

At some point, and unknown to KPRS, Angle Iron Works further subcontracted with G.B. Metal Fabricators to cut openings on the roof of the mechanical building.

The structural plans called for no openings greater than six inches to be cut in the metal roof of the mechanical building until the cement roof had been poured and cured.

On July 26, 2026, A.G. Construction crews began loading a metal roof deck onto the structural steel of the mechanical building, which necessitated employees of KPRS’s subcontractors to work on the roof. The Appeals Board later noted that this was the trigger for KPRS’s obligation to inspect the roof.

On July 27, 2018, G.B. Metal, a subcontractor two levels below KPRS, cut a two-by-three-foot opening in the building’s metal roof deck and covered it with plywood. At some unknown point before the injury, the cover moved off the opening.

KPRS did not inspect or monitor the crews working on the approximately 25,000 square foot mechanical building roof at any time during the eleven days that its subcontractors’ employees were on the roof.

On August 7, 2018, Jorge Antonio Chavez Soto, an employee of A.G. Construction, was working on the roof clearing debris when he either picked up the unmarked plywood cover or stepped onto it. He fell approximately twenty-seven feet to the cement floor below, suffering serious injuries.

Following an investigation, the California Division of Occupational Safety and Health (Cal/OSHA) issued two Serious Accident-Related citations to KPRS under the multi-employer theory of liability as the controlling and correcting employer. The citations alleged violations of Title 8, section 1509(a) (failure to implement an effective Injury and Illness Prevention Program (IIPP)) and section 1632(b)(1) (failure to guard floor/roof openings), with proposed penalties of $22,500 for each citation.

Vindication at Trial

On January 12, 2024, the administrative law judge (ALJ) vacated Citation 1 because Cal/OSHA could not prove that it ever requested or reviewed KPRS’s IIPP that it alleged KPRS failed to effectively implement. The ALJ took a linear approach to this citation, holding that the substance of an employer’s IIPP is a necessary element to be able to find that an employer failed to effectively implement the same IIPP.

The ALJ vacated Citation 2 because KPRS met its burden to prove the “due diligence” affirmative defense available to controlling employers on multi-employer worksites.

Heartbreak on Appeal

On March 12, 2026, the Appeals Board disagreed with the ALJ’s analysis and reversed on all key issues.

Citation—Failure to Implement IIPP

The Appeals Board held that Cal/OSHA is not required to evaluate the substance of an employer’s actual IIPP before issuing a citation for a failure to effectively implement its IIPP. Essentially, an employer’s failure to inspect and identify a hazard is sufficient to find that the IIPP, no matter how perfectly drafted, was not effectively implemented.

Interestingly, KPRS, rather than Cal/OSHA, moved its IIPP into evidence. KPRS then presented a novel argument that it should be relieved of liability because the Cal/OSHA failed to comply with Labor Code section 6314.5, which KPRS argued created a requirement for the Cal/OSHA to evaluate employers’ IIPPs when they open inspections. The Appeals Board held that Labor Code section 6314.5 does not create an affirmative defense for employers when Cal/OSHA fails to comply.

The Board rejected KPRS’s argument that it had no obligation to inspect the mechanical building roof because access was limited and the structural plans did not call for openings to be cut until the concrete was poured and cured.

Instead, the Board held that as soon as employees were on the roof, KPRS was obligated to inspect that area of the worksite. Moreover, KPRS’s own IIPP (again, admitted at trial by the employer) required “daily safety inspections of the work area.”

The Board seemed to perceive KPRS’s decision not to inspect the roof as one of deliberate ignorance, reasoning that permitting the lack of knowledge defense here “would incentivize employers to conduct inadequate inspections.”

Citation 2—Failure to Guard Floor/Roof Openings

The Appeals Board also reversed the ALJ’s finding that KPRS satisfied the due diligence defense. Applying the five-factor test from McCarthy Building Companies with no deference to the ALJ’s determinations, the Board found that KPRS failed to establish three of the five factors. The Appeals Board helpfully laid out the factors below:

• whether the controlling employer conducted periodic inspections of appropriate frequency;
• whether the controlling employer implemented an effective system for promptly correcting hazards;
• whether the controlling employer enforced the other employer’s compliance with safety and health requirements with an effective, graduated system of enforcement and follow-up inspections;
• whether the controlling employer researched the safety history of the subcontractor; and
• whether the hazard was latent and unforeseeable.

The Board found that KPRS did not meet factors (a), (d), and (e).

With regard to factor (a), KPRS did not conduct periodic inspections of appropriate frequency because it failed to inspect the mechanical building roof, for at least eleven days, while multiple crews were working there. It is possible that the Appeals Board would have come to a different conclusion on this factor if KPRS conducted a physical inspection of the roof at some point while its subcontractors’ employees were working on the roof before the opening was cut, even though it still may not have identified the hazard.

With regard to factor (d), the Board found that KPRS did not adequately research the safety history of its subcontractors. KPRS was the general contractor and only vetted direct subcontractors. It did not investigate the subcontractors below its direct subcontractors, what it called “sub-tier” contractors like G.B. Metal. Additionally, this was the first job for which KPRS contracted with Angle Iron and accordingly they did not have a basis for trusting Angle Iron’s safety practices. KPRS’s decision not to inspect the roof before the accident “reflect[ed] an “unearned confidence in Angle Iron.”

Finally, with regard to factor (e), the Board found that the hazard was not latent and unforeseeable because employees were working on the roof for eleven days and the unsecured opening existed for ten of those days. Again, it is not clear if the Board would have come to a different conclusion had KPRS conducted an inspection on the first day the employees were on the roof.

The Board affirmed both citations and assessed total penalties of $45,000.

Key Takeaways for Construction Employers

This decision underscores several important lessons for general contractors and controlling employers in California:

1. Inspections must cover everywhere employees are working. Employers cannot carve out exceptions for areas that are difficult to access or where only subcontractors are working. If employees of any contractor or subcontractor are working in an area, the general contractor’s IIPP obligations extend there. Reliance on plans and project scheduling alone is insufficient.

2. Due diligence is required to establish a valid “lack of knowledge” defense. An employer’s unawareness of a hazard does not insulate it from liability for failing to identify, evaluate, and correct that hazard.

3. All subcontractors, even those with whom a subcontractor contracts, are the general contractor’s responsibility. Employers may want to consider vetting the safety records of all contractors who will be working on a jobsite, not just those with whom they have direct contracts.

Ogletree Deakins’ California offices and Workplace Safety and Health Practice Group will continue to monitor developments and will post updates on the California, Construction, and Workplace Safety and Health blogs as additional information becomes available.

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Quick Hits

• The DOL’s new website for the Center for Faith includes resources on preventing workplace religious discrimination and how faith organizations can access federal grants.
• The website is part of the Trump administration’s focus on addressing religious bias in the workplace.

The DOL established the Center for Faith in response to an executive order in 2025. The Center for Faith engages with faith-based organizations to defend religious liberties, combat religious bias, and maximize their participation in grant funding opportunities.

The new website compiles resources from the White House, the DOL, and the U.S. Equal Employment Opportunity Commission (EEOC) to explain employers’ legal obligations to provide a workplace free of religious discrimination, harassment, and retaliation.

It includes an interactive state map showing religious protections in different states. It also includes retirement plan resources for faith-based organizations and links to executive orders and federal guidance regarding religious discrimination.

Next Steps

Private employers may wish to review and update their written policies and practices to ensure that religious discrimination, harassment, and retaliation will not be tolerated. They may wish to train supervisors to understand state and federal antidiscrimination laws and when employers should consider providing religious accommodations.   

In addition, employers may wish to ensure that individuals responsible for investigating workplace concerns are trained to address any internal complaints concerning alleged unfavorable treatment on the basis of religion in a prompt and effective manner consistent with other categories of workplace concerns.

Ogletree Deakins’ Diversity, Equity and Inclusion Compliance Practice Group will continue to monitor developments and will post updates on the Diversity, Equity, and Inclusion Compliance and Employment Law 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.

Simone R.D. Francis is a shareholder in Ogletree Deakins’ St. Thomas and New York offices.

Charles L. Thompson, IV, is a shareholder in Ogletree Deakins’ San Francisco 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

• West Virginia legislators passed a bill (HB 4009) that permits companies to provide portable benefit accounts for workers without needing to classify those workers as employees.
• Governor Patrick Morrisey has not signed or vetoed the bill yet.
• If enacted, the bill would take effect for taxable years starting on January 1, 2026, or later.

Portable benefits are benefits that stay with the individual and accumulate based on hours worked or a percentage of transaction fees. They can function similar to a 401(k), paid time off program, or health savings account (HSA). Instead of benefits offered by one employer, portable benefits allow workers to receive funding from multiple companies in a single account. Often, a third-party administrator handles the contributions from the various employers.

Unlike employees, independent contractors are not legally entitled to minimum wage, overtime pay, unemployment benefits, and workers’ compensation. Some states require certain employers to provide paid sick leave and/or disability insurance to employees, but not independent contractors.

The West Virginia bill would provide an income tax deduction for contributions to and funds received in portable benefits accounts.

Utah and Alabama recently enacted similar laws on portable benefits for independent contractors.

Next Steps

The West Virginia bill will take effect in June 2026 if Governor Patrick Morrisey does not veto it. It would be effective for taxable years starting on January 1, 2026, and thereafter. It is unclear how many employers would start providing portable benefits that were not doing so already, but this bill could foster interest in doing so.

Employers in West Virginia may wish to track the number of independent contractors they use and carefully document the legitimate reasons for classifying each worker as an independent contractor, rather than an employee. Employers that misclassify workers as independent contractors may face federal or state fines and liability for unpaid wages, overtime pay, unpaid taxes, or workers’ compensation. It is unclear how this law will impact classification arguments under federal law. 

Ogletree Deakins will continue to monitor developments and will post updates on the Employee Benefits and Executive Compensation, Wage and Hour, and West Virginia blogs as additional information becomes available.

Information on state and federal independent contractor laws is also available on the Ogletree Deakins Client Portal. If this proposed rule is adopted, the Client Portal will provide updates in the Federal Independent Contractors law summary. Snapshots and updates are available for all registered client users. Detailed information is available for Premium and Advanced subscribers. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

Bethany S. Wagner is a shareholder in Ogletree Deakins’ Pittsburgh 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

• Oregon’s Senate Bill (SB) 916 extends unemployment insurance benefits to both public and private sector workers participating in strikes.
• The U.S. Department of Labor has raised concerns about the SB 916, warning that striking workers must still demonstrate they are actively seeking work to receive benefits.
• Employers may want to review collective bargaining agreements and prepare for longer and more frequent work stoppages, as the law shifts the balance of power in labor disputes while raising questions about its long-term impact on Oregon’s business climate.

What the Law Does

SB 916 allows striking workers to be eligible for up to ten weeks of unemployment benefits during a strike. Striking employees must wait two weeks before receiving UI benefits—i.e., they must wait one week before becoming eligible for benefits (referred to as an “unpaid strike week” on the Oregon Employment Department website, in addition to the existing one-week waiting period required for all claimants before UI benefits can be paid.

The law requires UI benefits to be paid back if the employee later receives backpay that results in an overpayment of benefits. School districts will also be required to deduct from the employee’s future wages the benefits charged for weeks during a strike.

UI benefits do not fully replace a worker’s wages, and range from roughly $200 to $870 per week as of March 2026, depending on prior earnings.

Oregon is the first state to offer unemployment benefits to both public and private-sector employees who go on strike. There are three states—New Jersey, New York, and Washington—that grant some unemployment benefits to striking workers, but in those states, public employees are barred from striking. SB 916 does not modify existing Oregon law prohibiting certain types of public employees, like police officers and firefighters, from participating in a strike while allowing other public employees to strike in certain circumstances. The new law’s focus, instead, is on whether an employee is out of work “due to a labor dispute,” and it makes UI benefits available in that circumstance.

Federal Pushback in 2026

The law went into effect on January 1, 2026, and it didn’t take long for the federal government to weigh in with compliance concerns.

On January 8, 2026, the U.S. Department of Labor (DOL) issued guidance for state administrators and UI directors. The DOL’s guidance noted that federal law requires UI claimants to be “able to work, available to work, and actively seeking work” in Section 303(a)(12) of the Social Security Act. The DOL specified that a worker on strike must engage in activities that demonstrate to the state UI agency that they meet this requirement and that their efforts to secure other work are “genuine in nature.” The DOL cautioned that states cannot exempt workers on strike from this requirement and that doing so could result in the loss of federal grants. Further, if an employer asks an employee to return to work before a labor dispute is resolved and the employee refuses, the DOL advised this could be considered a refusal of work that would need to be adjudicated by the state.

The Oregon Employment Department (OED) currently advises striking workers that they must be engaged in work-seeking activities, like attending job placement meetings sponsored by the OED or updating a resume. As of March 2026, the OED website notes that “requirements for actively seeking work may change” and references “ongoing discussions” with the DOL.

First Major Test: Portland Community College Strike (March 2026)

Oregon’s SB 916 is now facing its first significant real-world test at Portland Community College (PCC), where two unions representing approximately 2,300 employees, including faculty, academic professionals, and classified staff, went on strike on March 11, 2026. The strikes mark the first in PCC’s history and are being watched closely as a test case for how SB 916 will work in practice.

The Bigger Picture

SB 916 shifts the balance of power between employers, unions, and workers in collective bargaining and labor disputes, though the extent of that shift remains to be seen. Employees are not insulated from the economic reality of a mandatory two-week waiting period before UI benefits begin, and when benefits do arrive, they replace only a fraction of the employee’s regular pay. Data from the U.S. Bureau of Labor Statistics suggests that the majority of strikes are shorter than the waiting period for UI benefits, meaning that most striking workers might exhaust the waiting period before collecting UI benefits.

For employers, the more pressing concern may be less about individual strikes and more about the aggregate effect: SB 916 is expected to produce longer and more frequent work stoppages over time, and work stoppages impose a direct cost on Oregon’s unemployment insurance fund (a fund sustained by employer payroll taxes), raising legitimate questions about the law’s long-term effect on Oregon’s business climate.

Next Steps for Employers

Unionized employers may want to review their collective bargaining agreements with fresh eyes to determine if and how a no-strike clause applies.

Unionized employers may also want to prepare for the increased possibility of a strike. In addition to modeling the financial exposure of a prolonged work stoppage, there are many things to consider when preparing for a strike, including the following top-line items:

• Developing a plan to continue operations, including hiring replacement workers or cross-training employees and management.
• Communicating with customers and third-party vendors about operations.
• Determining the legality of preparations for a strike, how to communicate with employees, and preparing for other important aspects of handling a strike or potential strike.

Public employers may also want to determine whether and how UI benefits may be recovered.

Ogletree Deakins’ Portland (OR) office will continue to monitor developments and will post updates on the Higher Education, Oregon, and Traditional Labor Relations blogs as additional information becomes available.

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Quick Hits

• Artificial intelligence, facial recognition systems, and body cameras on security guards are some of the newer methods retailers are using to prevent crime in stores.
• Recording audio without consent may be prohibited under federal and state laws.
• Employees and customers have certain privacy rights where there is a reasonable expectation of privacy.

Retailers are under pressure to balance security concerns, such as preventing theft, with the privacy rights of customers and employees. Some retailers have begun using facial recognition technology, surveillance cameras with artificial intelligence capabilities, and/or security guards with body cameras. These technologies may implicate privacy laws, depending on the state and how they are used.

The Federal Wiretap Act prohibits the intentional interception or procurement of any wire, oral, or electronic communication without at least one party’s consent. It applies to audio recordings, but not video-only recordings.

California, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania, and Washington State require consent by all parties to legally record audio of a conversation. Other states allow one-party consent, meaning one party in a conversation can record audio without the other party’s consent.

In general, video recordings without audio are permitted in retail environments, except in places where there is an expectation of privacy, such as bathrooms and dressing rooms. Certain states expressly prohibit hidden cameras in places where there is an expectation of privacy. Video recordings, however, are permitted in public places like store aisles, parking lots, entranceways, and checkout counters.

In particular, facial recognition systems may increase liability for employers because some states, including California, Illinois, Texas, and Washington, restrict the collection of sensitive biometric data without notice and consent. Likewise, in 2024, the Federal Trade Commission (FTC) settled a case against a pharmacy retailer with the court ordering the pharmacy retailer to cease using facial recognition technology for security or surveillance purposes for five years.

Depending on the state, retail stores may be required to inform customers and employees if audio and video are recorded, or if facial recognition tools are used. This can be accomplished with posted signs, onboarding paperwork, and employee handbooks.

Furthermore, the Federal Trade Commission Act prohibits ‘‘unfair or deceptive acts or practices in or affecting commerce.’’ This includes practices that are likely to cause substantial injury to consumers and cannot be reasonably avoided by consumers.

Next Steps

Employers may wish to review their written policies and practices to ensure they comply with state laws on video and audio surveillance. Privacy laws vary greatly by state, making the situation complicated for multistate and multinational retailers. Posting conspicuous disclaimers about video and audio recording may help reduce liability for employers, even when it is not legally required.

Ogletree Deakins’ Retail Industry Group will continue to monitor developments and will post updates on the Cybersecurity and Privacy, Multistate Compliance, and Retail blogs as additional information becomes available.

Brandon R. Sher is a shareholder in Ogletree Deakins’ Philadelphia office and co-chair of Ogletree Deakins’ Retail Industry 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

• USCIS will continue to accept adjustment of status filings based on the Dates for Filing chart in April 2026.
• EB-1, EB-2, and EB-3 categories are current on the Dates for Filing chart for all countries other than India, China, and Philippines (only EB-1 and EB-2 categories are current for Philippines).
• EB-1 category final action dates advance for China and India.
• EB-2 and EB-3 categories for India advance significantly on dates for filing.
• EB-2 India and EB-3 China final action dates advance.

The Final Action Dates chart shows the following movement in the April 2026 Visa Bulletin:

• EB-1: All countries remain current except China and India (which both advance to April 1, 2023).
• EB-2: All countries are current except China (which has no movement) and India (which advances to July 15, 2014).
• EB-3: All countries advance except India and Philippines.
• EB-4: All countries advance to July 15, 2022.
• Certain Religious Workers: All countries advance to July 15, 2022.
• EB-5: China advances to September 1, 2016.

Source: U.S. Department of State, April 2026 Visa Bulletin, Dates for Filing Chart

The Dates for Filing chart shows the following movement in the April 2026 Visa Bulletin:

• EB-1: No movement for China and India. All other countries remain current.
• EB-2: India advances to January 15, 2015. No movement for China. All other countries remain current.
• EB-3: India advances to January 15, 2015. No movement for China and Philippines. All other countries are current.
• EB-4: No movement.
• Certain Religious Workers: No movement.
• EB-5: No movement.

Source: U.S. Department of State, April 2026 Visa Bulletin, Dates for Filing Chart

Key Takeaways

The State Department notes that this advancement is in part due to the immigrant visa processing pause on certain nationalities and cautions that additional demand and future policy shifts could necessitate retrogression later in the fiscal year to maintain immigrant visa issuance within annual limits.

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

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Quick Hits

• The Third Circuit allowed a white police officer’s discrimination lawsuit to proceed, predicting that the Supreme Court of New Jersey would drop the “Background Circumstances Rule” requiring heightened proof for reverse discrimination claims.
• The ruling reflects a 2025 decision by the Supreme Court of the United States that rejected higher standards for majority-group plaintiffs in discrimination cases.
• A concurrence further criticized the “Background Circumstances Rule” as discriminatory and unconstitutional.

In Massey v. Borough of Bergenfield, the Third Circuit reversed a district court’s summary judgment ruling in favor of a New Jersey municipality in a racial and religious discrimination case brought by a “white male” police officer. The police officer, who had served as deputy chief and acting officer in charge of the borough police department, alleged he was unlawfully discriminated against when seeking a promotion to police chief after the municipality hired a candidate who is an “Arab-Muslim” male and who held the lower rank of captain.

The Third Circuit found that the police officer had sufficiently raised issues that entitled him to a trial on his claims brought under New Jersey’s Law Against Discrimination (NJLAD) and the Equal Protection Clause, 42 U.S.C. § 1983, but affirmed the dismissal of claims under 42 U.S.C. § 1981.

The Background Circumstances Rule

At the center of the case was the application of New Jersey’s “Background Circumstances Rule,” which places a heightened burden on a plaintiff from a majority group to “show that he has been victimized by an unusual employer who discriminates against the majority.” Such tests have made it more difficult for plaintiffs from a majority group (e.g., white, male, or Christian) to bring employment discrimination claims, or so-called reverse discrimination claims.

The district court granted summary judgment to the municipality, concluding that the police officer had not met the requirements of the “Background Circumstances Rule” and had failed to adequately rebut the municipality’s justifications for its promotion decision.

Following the district court ruling, the Supreme Court issued its June 2025 decision in Ames v. Ohio Department of Youth Services, rejecting such “background circumstances” rules and holding that plaintiffs from majority groups cannot be held to a higher standard of proof in employment discrimination cases under Title VII of the Civil Rights Act of 1964. In the unanimous opinion, the Supreme Court said that with Title VII, “Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”

Third Circuit Says New Jersey Will Follow Ames

With no New Jersey supreme court decision addressing New Jersey’s “Background Circumstances Rule” following Ames, the Third Circuit in Massey examined what the state supreme court would likely decide. The Third Circuit predicted that the New Jersey high court would, as the Supreme Court did in Ames, find that the rule “no longer has a permissible role to play in litigation under” NJLAD and scrap it. Further, the Third Circuit found that the rule’s “vagueness leaves it susceptible to arbitrary applications and inconsistent results.”

In reaching that conclusion, the Third Circuit recognized the Supreme Court of New Jersey’s reliance on federal law and that the NJLAD is a “mirror image” of Title VII. Like Title VII, “[t]he facial coverage of the NJLAD leaves no room for the Background Circumstances Rule,” the Third Circuit stated. In finding that the white male policer officer presented enough evidence to defeat the municipality’s summary judgment motion, the Third Circuit ruled that the municipality’s “naked invocation of a diversity preference is not a legitimate, non-discriminatory reason for an employment decision.” The court further observed that a jury could either “credit” defendants’ references to diversity as a “defensible policy aim—even though the comments are not, on their own, a lawful race-neutral justification for a challenged employment action” or regard them as “‘code words’ reflecting discriminatory intent.”

In a separate concurring opinion, Judge Emil Joseph Bove III, who also authored the opinion of the court, raised further arguments against the “Background Circumstances Rule.” Judge Bove argued that the rule is a “discriminatory application” of the NJLAD, and “plainly” violates the Equal Protection Clause, and criticized it for violating the racial neutrality in decision-making required by the antidiscrimination law without any legitimate justification. “Even if there was an interest sufficient to warrant the racial discrimination at issue, the Background Circumstances Rule is not ‘narrowly tailored’—meaning ‘necessary’—to achieve that interest,” Judge Bove stated in the concurrence.

Next Steps

The Massey ruling is the latest to criticize heightened pleading standards for employment discrimination claims brought by plaintiffs from majority groups. While the Supreme Court struck down such standards for Title VII claims, some states continue to impose similar requirements, but the Massey ruling suggests those standards could also be on the chopping block. At the same time, employers in New Jersey should note that the Third Circuit’s ruling is not a definitive statement of New Jersey law, and it is possible that the Supreme Court of New Jersey could keep the Background Circumstances Rule or some version of it.

Meanwhile, the Ames case, combined with the U.S. Equal Employment Opportunity Commission’s (EEOC) new enforcement priorities encouraging “white males” to come forward with employment discrimination claims, means employers are likely to see more claims from members of majority groups under both state and federal law.

Ogletree Deakins’ Morristown office and Diversity, Equity, and Inclusion Compliance Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, and New Jersey blogs as additional information becomes available.

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Quick Hits

• On March 17, 2026, Washington Governor Ferguson signed legislation that amends the definition of “employers” that are required to comply with the state’s mini-WARN law to exclude Native American tribes.
• The bill also changes the notices that must contain the names and addresses of employees affected by layoffs.
• The amended mini-WARN Act also stops disclosure under the Public Records Act of the names and addresses of affected employees.

ESB 6106 amends the Securing Timely Notification and Benefits for Laid-off Employees Act (STABLE Act) in two key respects.

First, the bill excludes from the definition of “employer,” “any Indian tribe,” as defined in section 3306(u) of the federal unemployment tax act. This change was designed to align with other laws honoring the governmental status of Native American tribes in the state.

Second, ESB 6106 reduces the dissemination of the names and addresses of employees affected by layoffs and business closures by:

• eliminating the names of the employees affected from the notice to affected employees who are not represented by a union,
• including the names and addresses of affected employees only on the notices to the employees’ bargaining representative and the Employment Security Department (ESD), and
• exempting the names and addresses of affected employees from public disclosure under the Public Records Act (PRA).

The changes to the notice requirements will better protect employee privacy by limiting the public disclosure of employees’ names and addresses.

The amendments take effect immediately, so employers will want to update their notice forms to accommodate those changes.

Ogletree Deakins’ Seattle office will continue to monitor developments and will post updates on the Reductions in Force and Washington blogs as additional information becomes available.

In addition, information on WARN laws is available on the Ogletree Deakins Client Portal. The Terminations and RIFs topic page covers WARN and Mini-WARN, Termination Notices, Final Pay Upon Termination, and other related federal and state laws. Snapshots and updates are available for all registered client users. Premium and Advanced subscribers have access to the detailed law summaries, including Washington WARN and Mini-WARN, applicable notice templates, and a step-by-step guide for handling RIFs and Closures. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

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