Quick Hits

• The EEOC voted to rescind its 2012 enforcement guidance related to using arrest and conviction records in employment decisions.
• The Commission stated that the agency voted 2-to-1 in favor of rescinding on October 28, 2026, and that the rescission is effective immediately.
• The 2012 guidance had indicated that employers’ use of information on arrest and conviction records could implicate their obligations under Title VII of the Civil Rights Act of 1964—under both disparate treatment or disparate impact theories.

EEOC Chair Andrea Lucas stated that the vote to rescind “reaffirms the agency’s commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC’s authority.” According to Lucas, “Rescinding this guidance does not give employers license to engage in unlawful discrimination — Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination. The EEOC will continue to vigorously enforce these protections in accordance with the law.”

The U.S. Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) received a draft final rule that would rescind the previous guidance, “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act.” Since the publication of the 2012 guidance, the federal government has pivoted away from enforcing employment laws based on disparate impact theories.

Expected Impact of the Guidance Rescission

The EEOC likely will continue to pursue enforcement of cases involving disparate treatment, but not disparate impact, in the use of criminal background checks in employment. Although the EEOC likely would continue not to pursue disparate impact charges (opting instead to issue right-to-sue letters), disparate impact allegations based on criminal histories may continue in private lawsuits.

Plaintiffs, however, likely will continue to bring private lawsuits alleging Title VII discrimination based on both disparate treatment and disparate impact claims. At the same time, rescission of the 2012 guidance could affect private lawsuits because employers may argue that the rescission undercuts a Title VII disparate impact claim, while private plaintiffs may argue that the rescission does not impact existing Title VII disparate impact case law.

Finally, the recission is not expected to directly impact the federal Fair Credit Reporting Act (FCRA) or state or local laws governing the use of criminal history information. The FCRA imposes procedural and substantive requirements on employers using background checks obtained from third-party vendors, or state and local background check laws governing the use of criminal history information, which would continue to be enforced by agencies other than the EEOC and/or private plaintiffs.

Employers may wish to review their written policies to ensure compliance with state and local laws regarding background checks and train hiring managers to stay compliant with background check laws.

Ogletree Deakins’ Background Checks Practice Group will continue to monitor developments and will provide updates on the Background Checks and Employment Law blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on federal and state Background Check laws, as well as those of major localities. Subscribers have access to comprehensive law summaries, policies, and templates. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.

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Quick Hits

• President Trump signed Executive Order 14426, “Accelerating Access to Veterans’ Benefits and Employment Opportunities,” on September 8, 2026, to address the transfer of records between DOW and the VA.
• The executive order sets a series of deadlines for the DOW and the VA to modernize both the technology and the policies governing records sharing.
• The executive order also directs changes to help veterans move more quickly into employment or further training.

The Problem the EO Is Trying to Solve

When military records move slowly, everything downstream moves slowly with them. Healthcare coverage stalls. Benefits processing and payments are delayed. Education opportunities and job training become harder to access. EO 14426 frames this not as a minor administrative inconvenience but as a structural barrier that actively hampers veterans’ transition to civilian life.

What the Order Requires

The EO sets a series of deadlines for DOW and the VA to modernize both the technology and the policies governing records sharing:

Within thirty days and at all times thereafter, DOW must begin sharing a service member’s official military personnel file, health records, and service treatment records with the VA immediately upon that individual’s discharge or release from service. This is the most time-sensitive requirement in the order and appears designed to stop the problem before it starts, rather than fixing it after the fact.

Within 120 days, the secretaries of War and Veterans Affairs, in consultation with the U.S. Department of Health and Human Services and the Office of Management and Budget, must review and modify all relevant technology contracts to ensure their systems communicate with each other, addressing the interoperability issues that have historically been at the root of these delays.

Within 180 days, two things must happen:

• DOW and VA must establish updated technology and policy guidance to ensure the permanent, prospective, and ongoing sharing of all official military personnel files and service treatment records are shared from the moment an individual enters service until he or she no longer requires VA benefits, not just at the point of discharge.
• The two agencies must also build and deploy tools that consolidate the application and access process for earned benefits, including job training and opportunities offered by the U.S. Department of Labor (DOL), into a single, comprehensive source.

A Parallel Push on Employment

The order doesn’t stop at records. It also directs changes to help veterans move more quickly into employment or further training. Within 180 days, the secretary of War, in consultation with the secretaries of Labor and Veterans Affairs, must update the Transition Assistance Program and related workforce programs so that every separating service member is, to the maximum extent practicable and applicable, either:

1. connected to specific open jobs matching the individual’s skills and interests; or
2. enrolled in career and technical education, an eligible DOL-funded employment or training program, or a registered apprenticeship.

Separating service members must also be connected with veterans’ representatives, whether federal, state, or local, who can help them apply for healthcare, disability, home loan, job placement, or education benefits.

Reading Between the Lines

This order fits into a broader, ongoing policy focus on veterans and transitioning service members. At its core, it targets a specific and well-documented failure point: outdated and incompatible software systems that create delays in getting veterans the benefits they’ve earned. By forcing DOW and the VA to fix interoperability and share records immediately at the point of discharge, rather than relying on manual requests after the fact, the order attempts to close a gap that has affected veterans’ healthcare, financial stability, and job prospects for years.

In our view, it also signals an intent to make the transition out of the military less passive. Rather than simply providing information about available benefits and programs, the order pushes toward active connection: to specific jobs, to specific training programs, and to specific people who can help navigate the system.

The open question, as with many executive orders of this kind, is implementation. Aggressive deadlines and interoperability mandates are only as effective as the funding and staffing behind them. Whether the U.S. Congress and the agencies involved allocate sufficient resources to build and maintain these new systems will likely determine whether this order meaningfully shortens the gap between military service and civilian benefits or becomes another well-intentioned mandate that outpaces its own execution.

Ogletree Deakins’ Military Workforce Practice Group will continue to monitor developments and provide updates on the Military Workforce blog.

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Quick Hits

• In Hall v. Coal Bed Services, Inc., the Eleventh Circuit reversed a district court’s ruling that discharged laborers had failed to present sufficient evidence to allow their claims of race discrimination and retaliation to proceed to a jury trial.
• The Eleventh Circuit held that differential treatment of a coworker can be evidence of discrimination, even when the coworker had a longer tenure and a different job.
• The decision underscores the court’s continued embrace of a flexible, holistic approach when evaluating circumstantial evidence of discrimination.

Legal Background

Summary judgment is often an employer’s most important tool for resolving discrimination claims before trial. When an employer moves for summary judgment, the court will analyze whether the record evidence would allow a jury to find in the employee’s favor. Because a plaintiff bringing discrimination claims has to prove that the employer had a discriminatory motive, the central question at summary judgment is what evidence would allow a jury to find that the employer had a discriminatory motive.

The McDonnell Douglas burden-shifting framework has long been the standard for analyzing employment discrimination claims based on circumstantial evidence. Under this framework, a plaintiff may establish a rebuttable presumption of discrimination by showing that a “similarly situated” comparator outside the protected class received more favorable treatment. The Eleventh Circuit has traditionally applied strict criteria for comparators, requiring them to be similarly situated “in all material respects.”

However, the Eleventh Circuit has moved toward a more flexible approach. The court articulated what has become known as the “convincing mosaic” standard, an alternative path for plaintiffs to survive summary judgment without a strict comparator. Under this approach, courts analyze the evidence holistically, and circumstantial evidence can be sufficient if it allows a reasonable factfinder to infer intentional discrimination. However, courts and litigants are still left wondering what evidence counts as a “tile” in this mosaic and how many tiles are needed.

Factual Background

In Hall v. Coal Bed Services, Inc., two Black employees of a construction subsidiary claimed that throughout their employment their supervisors consistently favored their White coworkers. They testified that their supervisors gave them “dirtier” and more difficult assignments than their White coworkers, only addressed White employees by name, and did not offer Black employees the same opportunities for skill development and advancement.

About a month after they complained about this treatment to a supervisor, they were selected to take a mandatory drug test. The two plaintiffs refused and were fired by that supervisor. A White employee also refused and walked off the site before being fired. The plaintiffs were paid only for the hours they worked that day, but the White employee was paid for his full shift. And although all three later asked to be reinstated, only the White employee was allowed back. The company then replaced the two Black employees with two White laborers, one of whom it had previously fired for failing a drug test.

The Eleventh Circuit’s Decision

The Eleventh Circuit reversed the district court’s grant of summary judgment on both the discrimination and retaliation claims. The court applied the “convincing mosaic” approach and held that the evidence as a whole supported an inference of intentional racial discrimination. However, two pieces of evidence offer particular insight into how courts may weigh evidence going forward.

First, the court found the company’s “strikingly different treatment” of the White employee to be “highly significant” as one tile in the mosaic. The company argued that the White employee had more experience, longer tenure, and different job duties as a heavy equipment operator; and the court assumed without finding that he was not a proper comparator. Nevertheless, the Eleventh Circuit held that he did not need to be similarly situated in all material respects for his differential treatment to contribute to a convincing mosaic.

Next, the court heavily scrutinized the company’s position statement to the U.S. Equal Employment Opportunity Commission (EEOC). The company’s position statement characterized the drug test as random. During discovery, however, witnesses testified that the plaintiffs were targeted because a supervisor had reported observing the plaintiffs smoking marijuana on the job. The court found that, when viewed in the light most favorable to the nonmoving plaintiffs, evidence that the company did not mention such a report in its position statement created a dispute of fact as to whether it occurred. Going one step further, the court found that the company’s differing explanations for the drug test evidenced the kind of inconsistencies that suggest pretext, contributing another “tile” into the convincing mosaic of discrimination.

Combined with plaintiffs’ deposition testimony regarding differential treatment in the workplace, the Eleventh Circuit found that plaintiffs had presented sufficient evidence to create a convincing mosaic of discrimination, to survive summary judgment, and to have their day before a jury.

Key Takeaways for Employers

Differential treatment matters—even when employees are not formal comparators. This case reinforces that evidence of disparate treatment can be powerful even when the favored employee does not qualify as a “similarly situated” comparator. Evidence that employees outside the plaintiff’s protected class received favorable work assignments or lighter consequences for identical misconduct can become a tile in the convincing mosaic—regardless of formal job titles or tenure differences. Before making termination decisions, HR may want to review how similar conduct by other employees, regardless of title or tenure, was handled.

Investigating thoroughly before responding to the EEOC is essential.The court questioned the company’s explanation for the drug test because the company did not include it in its position statement. Employers may want to investigate thoroughly before responding to a charge of discrimination to ensure that they have included the key facts that will be relied upon should the matter proceed to litigation.

Consistency is critical in EEOC position statements. The court emphasized that the company’s shifting explanations for the drug test—described as “random” to the EEOC but later characterized as a response to a specific drug-use report—weighed heavily against the company. Employers may want to ensure that explanations provided during administrative proceedings are accurate and consistent with positions taken in litigation.

Courts will continue evaluating discrimination claims holistically. The Eleventh Circuit, which covers Alabama, Florida, and Georgia, continues to move away from rigid application of McDonnell Douglas in favor of a totality-of-the-circumstances approach. No single piece of evidence may be dispositive, but, as courts have put it, the cumulative weight of “suspicious timing, ambiguous statements, and other bits and pieces” may be enough for a reasonable jury to infer discriminatory intent.

Hall serves as a reminder that the Eleventh Circuit is committed to a flexible, evidence-based approach to employment discrimination cases at summary judgment. Employers defending these claims should expect courts to consider the full mosaic of evidence, including evidence, such as the treatment of employees who are not formal comparators, that might have carried little weight under McDonnell Douglas. Likewise, employers may want to ensure their explanations for adverse actions are thorough, accurate, and consistent from the earliest administrative stage through litigation.

Ogletree Deakins’ Employment Law Practice Group will continue to monitor developments and will post updates on the Employment Law and State Developments blogs as additional information becomes available.

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Quick Hits

• Oregon OSHA has finalized a workplace violence prevention rule that expressly covers home health agencies and home hospice programs in addition to hospitals and ambulatory surgical centers.
• The rule defines “workplace violence” to include threats, harassment, and intimidating behavior not just physical assault.
• Oregon OSHA’s Discrimination Complaint Rule (OAR 437-001-0295) now includes reporting workplace violence incidents.
• Covered employers must record incidents on the Health Care Workplace Violence Incident Log (or equivalent) in addition to existing general injury and illness recordkeeping.
• Covered employers now must consult with their safety committee (or employees during their safety meetings, if applicable) to create investigative and reporting procedures and to conduct periodic safety assessments, annual review of their workplace violence prevention plan, and training on workplace prevention and protection.

On October 22, 2026, Oregon OSHA announced that it had finalized its new workplace violence prevention rules for Oregon healthcare employers. Specifically, Oregon OSHA has adopted an entirely new rule, OAR 437-002-0150, which requires that hospitals, ambulatory surgical centers, home health agencies and home hospice programs have a workplace violence prevention and protection program. Healthcare employers covered by this new rule must, among other things, develop a workplace violence prevention and protection plan; provide regular training; and conduct regular assessments and measure the frequency of assaults.

Although Oregon previously had workplace violence prevention requirements that applied to hospitals and ambulatory surgical centers, this new rule greatly expands the coverage of the requirements by expressly covering home health agencies and home hospice programs, and also expands the definition of “workplace violence” to include “any act or threat of physical violence, assault, homicide, harassment, or intimidation or any other threatening behavior that occurs in the workplace ….” This expansion means compliant prevention plans must address a wider range of conduct than physical attacks alone.

In addition to enacting a new rule, Oregon OSHA is also amending its existing discrimination complaint rule, OAR 437-001-0295, to make clear that covered employees may file a discrimination complaint if they believe they have been discriminated against for reporting an incident of workplace violence.

Oregon OSHA is also amending its existing rule regarding recordkeeping for healthcare setting assaults, OAR 437-001-0706, to expressly include home health care and home hospice employers to the scope of the rule.

One important note is that this new rule adds to Oregon OSHA’s existing safety committee rules for healthcare employers, which will now have to consult with their safety committee (or with employees during safety meetings, where applicable), to create procedures for investigating incidents of workplace violence, to collect and report incidents of workplace violence, to conduct periodic security and safety assessments, to review annually their workplace violence prevention plan, and to provide workplace violence prevention and protection training. The existing safety committee rule is not being amended; instead, the workplace violence rule simply adds these requirements, meaning covered healthcare employers must take into account the new rule when administering their safety committees (or safety meetings, where applicable).

Oregon OSHA stated in its summary of the comments it received on the proposed rule that it will develop supplemental resources materials to assist employers in understanding the requirements of the standard. However, as of this writing, Oregon OSHA has not yet posted any such new supplemental resources.

Ogletree Deakins’ Portland (OR) office and Workplace Safety and Health Practice Group will continue to monitor developments and provide updates on the Healthcare, Oregon, Workplace Safety and Health, and Workplace Violence Prevention blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on workplace violence prevention laws, including those specific to healthcare employers. Premium-level subscribers have access to comprehensive law summaries, policies, and templates. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.

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Quick Hits

• The NJDOL proposes capping the difference between a posted range’s maximum and minimum at 60 percent of the minimum.
• The 60 percent cap was the most striking feature of the September 2025 proposed regulations. No other jurisdiction currently limits the size of an employer’s posted pay range beyond requiring a good faith estimate.
• The NJDOL’s FAQs also remove reference to the cap.
• New Jersey’s pay transparency statute took effect June 1, 2025.

The NJDOL took this step in direct response to public comments from employer and industry groups. Written comments on the notice are due December 18, 2026.

Background

New Jersey’s pay transparency law, N.J.S.A. 34:6B-23, took effect June 1, 2025. It has two main requirements. First, employers must disclose pay and benefits information in postings for new jobs and transfer opportunities. Second, employers must make reasonable efforts to notify current employees in the affected department(s) of promotional opportunities before making a promotion decision.

On September 15, 2025, the NJDOL published proposed implementing regulations. The comment period closed November 14, 2025. Under the proposed regulations, when an employer chose to post a range rather than a single rate, the range could not exceed 60 percent of the minimum. The spread was calculated by subtracting the minimum from the maximum, dividing by the minimum, and multiplying by 100. For example, a $20 to $25 hourly range (a 25 percent spread) would have complied, while a $20 to $35 range (a 75 percent spread) would not. Ranges set by a collective bargaining agreement or by law, rule, or local ordinance were exempt.

The October 19, 2026, notice proposes deleting the cap, its calculation method, and its exceptions. Comments on that change are due December 18, 2026. The notice sets no final-rule effective date.

What Changed—and What Did Not

The notice proposes deleting subsection (b) and reordering (c)–(g), without otherwise changing Section 4.1. In other words, only the proposed cap changed. In summary:

Again, the notice does not revise the employer definition, promotion requirements and exemptions, benefits and compensation definitions, enforcement provisions, or special rules for temporary help service firms and consulting firms.

How the Public Comments Shaped the Change

The NJDOL proposes deletion of the cap “as suggested by the commenters.” Their concerns included:

1. Statutory authority.Commenters argued that neither the statute nor its legislative history authorizes a numerical cap. The New Jersey State Chamber of Commerce cited the NJDOL’s acknowledgment that it cannot deviate from statutory mandates.
2. Unexplained percentage.Commenters questioned why 60 percent was chosen. The proposal says only that a cap would “ensure an appropriate level of specificity when pay ranges are used.”
3. Other states’ approaches.The comments could not identify another state with a similar cap.

Why It Matters

Removing the cap would bring New Jersey in line with other pay transparency jurisdictions on range width. Multistate employers would no longer need a New Jersey-specific range methodology or separate, narrower postings for roles that New Jersey covers. This matters especially because the NJDOL reads the law’s coverage broadly. Under the proposal, an employer with ten or more employees anywhere may be covered if it does business, employs persons, or takes applications in New Jersey. The NJDOL’s wage and hour guidance in the form of frequently asked questions (FAQs) have suggested that nationally advertised postings and positions outside New Jersey may also be covered.

Removing the cap does not remove all limits on ranges. Under the remaining proposed rules, ranges must still have a defined minimum and maximum. Employers that provide or control posting content will still be responsible for postings on third-party sites. And the statute still requires disclosure of pay and a general description of benefits and other compensation programs for each covered posting.

Next Steps

Employers may want to consider the following questions:

• Have templates or pay-band policies adopted the proposed 60 percent cap, and should those voluntary restrictions be reconsidered?
• Does each covered posting disclose an hourly wage or salary, or a range with both endpoints?
• Does each covered posting describe eligible benefits and other compensation?
• Do recruiter and job-board postings comply? Do hyperlinks meet every condition in the proposed rule?
• Do promotion notices reach all employees in affected departments? The proposed rule calls for conspicuous workplace notices and posting on an employee-only website or intranet accessible to all employees, if one exists.

Developments to watch:

• The NJDOL’s response to comments and any final adoption notice and effective date
• Further guidance on out-of-state and remote roles, electronic promotion notices, promotion exceptions, and nontraditional pay
• Whether the NJDOL’s FAQs address the proposed deletion or a future qualitative range standard
• Enforcement under the statute (up to $300 for a first violation and up to $600 for each subsequent violation): The FAQs treat noncompliant postings for one opening across multiple platforms as one violation; separate openings can produce separate violations.

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

In addition, the Ogletree Deakins Client Portal tracks developments and provides real-time updates on Pay Transparency / Job Postings and New Jersey’s employment laws, including New Jersey’s Pay Transparency Law. Full law summaries are available for Premium-level subscribers. Snapshots and Updates are available for all registered client-users. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

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Quick Hits

• In Winn v. Blakeslee Vineyard Estate, Inc., 352 Or App 803 (2026), the Oregon Court of Appeals resolved a previously unsettled question under ORS 652.615 in the employer’s favor.
• The court affirmed the dismissal of the plaintiff’s class claims under ORCP 32 I’s notice-and-cure mechanism and separately affirmed the dismissal of her individual claims for failure to prosecute.
• Chief Judge Lagesen dissented, concluding that the plain text of ORS 652.615 tied the $200 remedy to each paycheck from which wages are unlawfully withheld, not to a category of violation.
• The court also rejected the reasoning of an amicus brief that had urged an even more expansive reading—a separate $200 award for every discrete unlawful deduction.

Legal Framework

ORS 652.610(3) prohibits Oregon employers from withholding, deducting, or diverting any portion of an employee’s wages except in specifically enumerated circumstances. ORS 652.615 provides for “a private cause of action for a violation of ORS 652.610(3) for actual damages or $200, whichever is greater.” The statute doesn’t say whether that $200 figure is available per paycheck, per discrete deduction, or per category of violation in the aggregate.

ORCP 32 I gives employers a pretrial “cure” mechanism in class litigation: a defendant can defeat class allegations for damages by showing it has (1) identified (or made reasonable efforts to identify) the class, (2) notified members that it will provide compensation or correction on request, (3) provided or will provide that remedy within a reasonable time, and (4) ceased the challenged conduct.

Background

Clarissa Winn worked as an hourly employee in Blakeslee Vineyard Estate’s tasting room for about eight months in 2022. After resigning, she sued individually and as a putative class representative, alleging that the winery had misappropriated employees’ tip money, failed to compensate employees for all hours worked, and improperly deducted bonuses from paychecks.

Blakeslee moved to dismiss the class allegations under ORCP 32 I, submitting evidence that it had notified affected employees of the alleged violations and its plan to compensate them. The trial court (Judge Melvin Oden-Orr) found the notice insufficient and abated the case for sixty days, so Blakeslee could supplement it—but in doing so, the court had to resolve the parties’ dispute over what ORS 652.615’s $200 figure actually measured. Winn argued for a per-paycheck reading; Blakeslee argued for a per-category reading. The trial court sided with Blakeslee and, after Blakeslee had cured under that standard, dismissed the class claims. The trial court eventually dismissed the remainder of the case for want of prosecution. Winn’s motion to set that judgment aside was denied, and Winn appealed.

The Court of Appeals’ Analysis

The Statutory Damages Question

Writing for the majority, Judge Kamins worked through the State v. Gaines text-context-legislative-history framework at length, finding the bare text unhelpful: a “violation” could plausibly mean either a discrete act or an aggregate category, and parsing the indefinite article “a” (as Winn had tried to do) did not resolve it. The legislative history was more telling: ORS 652.615’s private right of action was grafted onto a preexisting criminal wage-violation statute that used the word “each” to signal per-instance penalties, and the legislature deliberately did not carry that word over when it created the civil remedy.

The court also pointed to a neighboring provision, ORS 652.100(2), where the legislature had explicitly written that “each pay period” constituted a separate violation—language conspicuously absent from ORS 652.615. Finally, the committee history showed lawmakers repeatedly worried about the bill “zinging” small employers with stacking penalties, and thus deliberately set the $200 figure low enough to keep these claims in district and small-claims court, which the majority found inconsistent with a reading that allowed the number to multiply per paycheck. In addition, the court drew support from the Oregon Supreme Court’s analysis of a structurally similar damages provision in Oregon’s landlord-tenant statute.

The majority’s bottom line: ORS 652.615 imposed a $200 statutory damage “for each type of statutory violation in the aggregate, not each discrete time the violation occurred”—rejecting both Winn’s per-paycheck theory and an amicus party’s per-discrete-deduction theory.

The Dissent

Although she agreed with the majority’s disposition of the individual claims, Chief Judge Lagesen dissented on the damages question. In her view, the plain text of ORS 652.615 controlled, authorizing damages for “a violation.” Judge Lagesen reasoned that because a violation of ORS 652.610(3) occurs each time an employer issues a paycheck containing an unlawful withholding, a cause of action—and the accompanying $200 penalty—accrues per paycheck. She would have reversed the dismissal of the class claims on that basis and remanded, including a remand of the individual-claims dismissal, so the trial court could reconsider it in light of the surviving class claims.

Key Takeaways for Employers

• Available damages for a wrongful deduction under ORS 652.615 are limited. A single category of violation entitles a plaintiff to the greater of actual damages or $200, regardless of how many individual paychecks are affected.
• ORCP 32 I’s cure mechanism can potentially be a useful pretrial tool—but the notice must be complete. The trial court here required Blakeslee to supplement its first notice before accepting the cure; a rushed or incomplete notice may cost time even where the underlying legal position is sound.

Ogletree Deakins’ Portland (OR) office and Wage and Hour Practice Group will continue to monitor Oregon wage-and-hour developments, including whether Winn is taken up for further review, and will provide updates on the Class Action, Oregon, and Wage and Hour blogs as additional information becomes available.

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Quick Hits

• A growing number of states and localities are passing laws to prohibit workplace discrimination based on menopause or perimenopause.
• Menopause symptoms may be covered under the ADA, depending on the woman’s limitations and essential job functions.
• Employers often cover menopause treatments in group health plans.

Legislative Action and Case Law

Legislation (H.R.9671) is pending in the U.S. House of Representatives that would require covered employers to provide reasonable accommodations for workers experiencing menopause symptoms, such as hot flashes, mood changes, sleep disruptions, fatigue, joint stiffness, and pain. The bill has been referred to the House Committee on Education and the Workforce.

Rhode Island and Philadelphia both have laws prohibiting employers from discriminating based on menopause. Illinois and Louisiana enacted laws requiring health plans to cover menopause treatments.

Governors in California and Virginia recently vetoed legislation that would have added menopause protections to state antidiscrimination laws. In vetoing the California law, Governor Gavin Newsom stated that menopause-related symptoms are already covered under California’s Fair Employment and Housing Act (FEHA) if they result in a medical condition or disability. Similarly, the New Jersey Division on Civil Rights has published guidance making clear that employers must accommodate perimenopause- and menopause-related symptoms as pregnancy-related conditions under the New Jersey Law against Discrimination.

There has been proposed legislation in many jurisdictions on this issue. While those proposals may or may not ultimately gain traction, they signal a continuing trend to expand the law to expressly address menopause and perimenopause.

In Coleman v. Bobby Dodd Institute, a 911 call taker sued for sex discrimination under Title VII of the Civil Rights Act of 1964 after she was fired for soiling an office chair twice due to heavy menstrual bleeding related to menopause. In June 2017, the U.S. District Court for the Middle District of Georgia ruled in favor of the employer, finding that menstruation and menopause were not included in legal protections under Title VII. The plaintiff appealed to the federal circuit court, and then the parties reached a settlement in November 2017.

Likewise, in Mullen v. New Balance Athletics, a shoe factory worker sued for disability discrimination, failure to accommodate, and retaliation under the Americans with Disabilities Act (ADA) and the Maine Human Rights Act. The plaintiff had menopause symptoms due to a recent hysterectomy, and she allegedly had an emotional outburst at work and was pressured to resign. Her employer argued that she did not have a disability as defined under the ADA, that she did not request a disability accommodation, and that she did not engage in protected conduct required for a retaliation claim. In February 2019, the U.S. District Court for the District of Maine rejected the employer’s motion to dismiss the three claims. The court affirmed that the ADA covers medical conditions that substantially limit a major life activity, including communication, endocrine function, and reproductive function. The two parties settled before a trial began.

The federal Pregnant Workers Fairness Act (PWFA) requires covered employers to provide reasonable accommodations for pregnancy, childbirth, and related medical conditions. The final regulation to implement the PWFA explicitly lists menstruation and lactation as “related medical conditions,” but federal courts have not yet settled whether menopause and perimenopause qualify as “related medical conditions” under the PWFA.

Disability Accommodations

Severe menopause symptoms may qualify as a disability under the ADA, if the symptoms substantially limit a major life activity, such as sleeping, concentration, or temperature regulation. Some states have even broader definitions of “disability” which could encompass menopause symptoms. Medically induced menopause, such as from surgery or chemotherapy treatment, may be more likely to qualify as a disability under the ADA or state law equivalents, compared to naturally occurring menopause.

Accommodations in the workplace can include portable fans, air conditioners, or windows opened in individual office spaces. Employers may consider providing reduced hours, expanded sick leave that can be used for perimenopause and menopause symptoms, more flexible paid time off benefits, or permission to work from home. They also may consider offering additional breaks for eating or using the restroom, permission to keep water at the workstation, and permission to sit or stand as needed.

Health Insurance Coverage

Treatments for menopause, such as hormonal medications and antidepressants, are often covered in employer-sponsored health plans and pharmacy benefits. Some states already mandate health insurance carriers to cover medically necessary treatment for perimenopause, menopause, and related symptoms and others have introduced similar legislation. While those state statutes may apply to fully insured health plans, state law coverage mandates such as these typically do not apply to self-funded health plans governed by the Employee Retirement Income Security Act (ERISA). 

Access to menopause specialists can be provided through telehealth benefits, and mental health benefits specific to menopause can be offered through the group health plan, employee assistance programs (EAPs), or virtual mental health programs. Some third-party service providers administer standalone or medical-plan-integrated menopause benefits. Employer-sponsored wellness programs focused on stress relief or exercise may help some employees manage menopause symptoms. These benefits aren’t just useful for workers in their forties or fifties. Menopause can happen much earlier due to surgery, chemotherapy, or hormonal conditions.

Ogletree Deakins’ Employment Law Practice Group will continue to monitor developments and will post updates on the Diversity, Equity, and Inclusion Compliance, Employee Benefits and Executive Compensation, Employment Law, Healthcare, and Leaves of Absence blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on laws specifically prohibiting discrimination based on menopause or related conditions (see Illinois Protected Characteristics, Rhode Island Protected Characteristics, and Philadelphia, Pennsylvania Protected Characteristics), and requiring accommodations specifically for menopause or related conditions (see Illinois Pregnancy, Childbirth, and Lactation, Rhode Island Pregnancy, Childbirth, and Lactation, and Philadelphia, Pennsylvania Pregnancy, Childbirth, and Lactation). Premium-level subscribers have access to comprehensive law summaries, policies, and templates. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.

Lucas J. Asper is a shareholder in Ogletree Deakins’ Greenville office.

Leslie E. Wallis is a shareholder 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

• On October 22, 2026, Sara Innamorato, the county executive of Allegheny County, Pennsylvania, which includes Pittsburgh, signed into law a paid parental leave requirement for private-sector employers.
• The new local law provides twelve weeks of paid parental leave for eligible employees and increases the accrual rate and amount of paid sick leave employees may receive each year.

The new law becomes effective 180 days from October 22, 2026, or on or about April 20, 2027. Employers are to implement the requirements of the law no later than 180 days from the effective date, which is on or about October 17, 2027.

Covered employers are those that have fifteen or more employees and that are located or conduct business within the geographical boundaries of Allegheny County, excluding federal and state employers.

Eligible employees are those who work for a covered employer within the geographical boundaries of Allegheny County for at least eighty hours in a year, excluding independent contractors, federal and state employees, members of a construction labor union covered by a collective bargaining agreement, temporary employees, and seasonal employees. To be eligible for paid parental leave benefits, a full-time employee must be employed with the employer for at least 180 continuous days. Part-time employees are eligible if they have been employed with the employer for at least 180 days and worked at least 625 hours during that period of time.

Key provisions of the new law include:

• Eligible employees receive up to twelve weeks of paid leave.
• The weekly paid benefit is the same base rate of pay subject to a $4,200 per week maximum, with specific calculations for part-time employees.
• Supporting documentation for leave may be requested by an employer.
• Employees must provide at least thirty days’ notice for foreseeable leave, or as soon as practicable.
• Leave is protected, and an employee returning to work must be restored to the same or equivalent position.
• Continuation of health benefits is required during leave.
• Married or domestic partners working for the same employer are both eligible for the full paid leave time, even when the leave runs concurrently.
• Paid parental leave also qualifies for and is to run concurrently with any federal Family and Medical Leave Act (FMLA) leave available to the employee.
• Retaliating against employees who apply for, take, or help another individual take paid parental leave is prohibited.
• This benefit will be funded solely by the employer. Employers have the choice of self-funding or a private insurance policy.

Reasons for paid parental leave include caring for, bonding with, and supporting the physical and emotional well-being of the employee’s child and, where applicable, the employee’s physical and emotional well-being, with leave to be taken during the first twelve months following the event. In the case of a stillbirth (fetal death), parental leave may be used by either parent to address the physical and behavioral health effects arising from the stillbirth, including recovery from childbirth where applicable.

Employers must provide notices to employees upon hire and annually. When an employee requests paid parental leave and submits all necessary documentation, the employer must provide a written eligibility determination to the employee within ten business days.

Employers also must file with the county a certification that it has complied with this law, beginning one year after the effective date and annually thereafter.

The law also amends the current Allegheny County Paid Sick Leave, accelerating accrual to one hour for every thirty hours worked and increasing annual sick leave hours from up to forty hours per year to up to seventy-two per year. This aligns with amendments of the Pittsburgh Paid Sick Days Act (PSDA) which were effective on January 1, 2026.

Key Takeaways

Further guidance is anticipated from the county. Employers covered under this law may want to start planning for compliance in 2027, and those with current paid parental leave policies may want to review those policies for necessary updates to comply with the new law.

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

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Quick Hits

• New York City recently adopted final amended rules implementing the Fair Chance Act, which limits employers’ criminal history inquiries and consideration of criminal histories in taking adverse actions against applicants or employees being considered for promotion or transfer.
• The rules requires employers to allow at least five business days for candidates to respond to inquiries about their criminal history before revoking offers or taking adverse actions—up from three days.
• The amended rules clarify requirements for employers to rely on exceptions when a criminal history has a “direct relationship” to a position or creates an “unreasonable risk.”
• The final amended rules take effect on October 30, 2026.

On September 15, 2026, the CCHR adopted final amended rules that align the commission’s regulations with Local Law 4 of 2021, which significantly expanded the FCA. The FCA, known as a “ban the box” law, prohibits criminal conviction inquiries prior to a conditional offer of employment and limits when an employer may take adverse action based on an applicant’s or employee’s arrest or conviction history.

The finalization comes more than two years after the CCHR proposed them in July 2024. The final amended rules take a harder line on enforcement and spell out new compliance obligations for employers in New York City.

Longer Response Period and Coverage of Current Employees

The most immediate operational change is timing. Under the rules, an employer that wants to revoke a conditional offer or take adverse action based on criminal history must now hold the position open or refrain from taking adverse action, and give an individual a reasonable time of at least five business days to respond, up from the prior three days. That period begins only when the individual receives both a required Fair Chance Employment Notice and a written copy of the inquiry to collect information about the criminal history. During that period, the employer may not permanently fill the position.

The final rules also clarify that the Fair Chance Employment Process applies to current employees whose pending cases or convictions arise during employment.

Expanded Fair Chance Employment Process

The final rules specify the “Fair Chance Employment Process” that employers, employment agencies, or agents must follow when withdrawing a conditional offer of employment, denying a transfer or promotion, or taking adverse action based on an employee’s or applicant’s criminal history.

The rules direct consideration of the following factors:

1. the policy of the city to overcome “unnecessary exclusion of persons with criminal justice involvement” in employment;
2. “the specific duties and responsibilities necessarily related to the employment”;
3. “the bearing, if any,” of the conviction history or pending arrest or criminal accusation on the applicant’s or employee’s “fitness or ability to perform one or more [of the job’s] duties or responsibilities”;
4. “whether the person was 25 years of age or younger at the time of occurrence of the criminal offense or offenses” at issue;
5. “the seriousness of such offense or offenses”;
6. “the legitimate interest of the … employer in protecting property, and the safety and welfare of specific individuals or the general public”;
7. “any additional information produced by the applicant, or produced on their behalf, in regards to their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.”

Clarified Per Se Violations

The rules clarify that “per se violations” of the FCA include using application forms or language expressing limitations on applicants or employees with criminal histories, “unsolicited statements about criminal background checks,” seeking information about an applicant’s criminal history prior to a conditional offer of employment, or “referencing that background checks will be conducted” except in response to applicants’ questions about criminal history checks. The rules also prohibit “the use of publicly available records or the [i]nternet for the purpose of learning about an applicant’s criminal history” prior to a conditional offer of employment. Further, the rules state that it is a per se violation to fail to follow the “Fair Chance Employment Factors.”

Employers must provide applicants or employees with a written copy of any inquiry into their criminal history, a written copy of their “Fair Chance Employment Analysis,” and allow an employee or applicant reasonable time to respond.

Broader Definitions of Protected ‘Criminal History’

The rules redefine “criminal history” to include “a person’s conviction history, non-convictions, and pending cases.” Notably, the new definition removes “unsealed violations” from the definition of “conviction history.”

As for “non-convictions,” the definition now covers adjournments in contemplation of dismissal. An adjournment in contemplation of dismissal becomes a “pending case” only if the order is revoked and the case is restored to the calendar before the employer conducts its analysis. Employers, employment agencies, and agents may not “seek or consider information pertaining to an applicant’s non-convictions unless specifically required by any other federal, state or local law, or unless otherwise exempt.”

Narrowing of ‘Direct Relationship’ and ‘Unreasonable Risk’ Exceptions

Under the FCA, after looking at the fair chance factors, employers can decide not to hire an applicant for two reasons:

• A direct relationship exists between the conviction and the sought job.
• The conviction history creates an unreasonable risk to people or property.

The final rules clarify the requirements for both the “direct relationship” and “unreasonable risk” exceptions. To rely on the “direct relationship” exception, employers must now show a direct connection between the alleged conduct and specific job duties. To rely on “unreasonable risk,” employers must “consider and apply all of the relevant” fair chance factors. The rules further caution that “the existence of a conviction or a pending case alone” is insufficient to show an “unreasonable risk,” nor is consideration of the “seriousness alone” without consideration of other factors. (Emphasis added).

Clarified Exemptions

Further, the rules reorganize exemptions and state that they are to be “construed narrowly,” with employers bearing the burden of proving that an exemption applies to each specific action. The rules recognize exemptions for certain law enforcement positions. For other positions for which employers are legally required to run background checks, the rules state that they may do so before a conditional offer. But unless they are legally required to reject the candidate, employers still must complete the full Fair Chance Employment Process. Unless another law explicitly requires it, employers may not state in job postings that a background check is required.

Changing Federal Regulatory Landscape

Notably, New York City’s move to strengthen restrictions on employers’ consideration of employees’ and applicants’ criminal histories comes as the federal government, under the current administration, has taken steps to roll back those restrictions. On October 6, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) advanced a proposal to rescind the 2012 guidance suggesting that employers’ use of criminal background information to make employment decisions may violate Title VII of the Civil Rights Act of 1964. While it is not clear that the EEOC will replace the guidance, it is anticipated that states and other jurisdictions, such as New York City, will fill in the gaps. At the same time, the rescission of the 2012 EEOC guidance would not impact the background check requirements imposed by the federal Fair Credit Reporting Act (FCRA).

Next Steps

The new rules amend New York City’s existing requirements under the FCA, augmenting employers’ compliance obligations, and take effect on October 30, 2026.

In light of the newly augmented New York City rules, employers in the city may want to ensure that job postings and applications remove criminal history questions and language on background checks, unless the position is specifically exempted, and may wish to train recruiters and others conducting interviews to avoid prohibited verbal inquiries during pre-offer interviews. Most immediately, the amended rules extend the waiting period to five business days for which employers must hold open a position following a conditional offer and updates the content of required Fair Chance Act notices.

Ogletree Deakins’ New York office and Background Checks Practice Group will continue to monitor developments and will provide updates on the Background Checks and New York blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on federal and state Background Check laws, as well as those of major localities. Subscribers have access to comprehensive law summaries, policies, and templates. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.

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Quick Hits

• The U.S. Department of Labor recently updated its tipped-employee guidance to reflect the Fifth Circuit’s 2024 decision in Restaurant Law Center and the reinstatement of the original dual jobs regulation.
• The FAB withdraws outdated materials and clarifies how employers should distinguish tipped and non-tipped work.
• Among other things, the bulletin states that percentage-based limits on duties within a tipped occupation no longer reflect Department policy.

The Dual Jobs Regulation

The FAB summarizes the history of the dual jobs regulation and the interpretation of section 3(t) of the FLSA. Section 3(t) defines a “tipped employee” as “any employee engaged in an occupation in which he customarily and regularly receives more than $30 a month in tips.” 29 U.S.C. § 203(t). Because neither the term “occupation” nor the phrase “engaged in an occupation” is defined, the dual jobs regulation provides direction. 29 C.F.R. § 531.56(e). In its simplest form, the dual jobs regulation recognizes that an employee may work in two or more distinct roles, one of which is a tipped occupation and the other of which is not. The best example is that an individual employed by a hotel may work as both a server and a maintenance worker. The dual jobs regulation explains that the employer may take a tip credit against its minimum wage obligation only for the hours the employee spends in the tipped occupation (as a server); for the hours worked in the non-tipped occupation (as a maintenance worker), the employer must pay the full minimum wage or higher.

History of the 80/20 (and 30-Minute) Rule

The three now-withdrawn opinion letters (Opinion Letter FLSA-895 (Aug. 8, 1979), Opinion Letter WH-502 (Mar. 28, 1980), and Opinion Letter FLSA-854 (Dec. 20, 1985)) interpreted the dual jobs regulation more expansively by looking at the time spent performing non-tip-producing duties within a tipped occupation. Over time, the guidance evolved to provide that if a tipped employee spent more than a certain percentage of work time performing non-tip-producing duties (often referred to as “side work”), the employer could not take a tip credit for the time spent on those duties.

Then, in 1988, the Department revised the FOH, adding subsection 30d00(e) to reflect the guidance in the now-withdrawn opinion letters, and added a definitive percentage threshold for permissible time spent performing non-tip-producing work within the tipped occupation. The revision solidified the “80/20” rule, which provided that if an employee spends more than 20 percent of the workweek performing non-tip-producing work (or side work), no tip credit may be taken for that work.

Years later, under the Obama administration, the Department issued its 2021 Dual Jobs Final Rule, which codified the 80/20 rule and added a 30-continuous-minutes rule, under which any non-tip-producing work performed for more than 30 consecutive minutes had to be paid at the full minimum wage or higher. The rule was in effect only briefly. In August 2024, the Fifth Circuit concluded that the 2021 Dual Jobs Final Rule was inconsistent with the FLSA and vacated the revised regulatory text (then 29 C.F.R. §§ 531.56(e)–(f)). The Department’s original 1967 dual jobs regulation was officially reinstated later in 2024 and appropriately focuses on whether the employee performs tasks unrelated to his or her tipped occupation, not on the amount of time spent performing particular non-tip-producing duties within the tipped occupation.

Where We Are Now

To end confusion about the Department’s position on the 80/20 rule, the FAB confirms that any guidance contemplating a percentage-based limit on duties performed within a tipped occupation no longer reflects WHD policy. The appropriate question in determining whether an employee is a tipped employee who may be paid the tip credit wage rate is whether the employee performs tasks unrelated to his or her tipped occupation, not the amount of time spent on non-tip-producing tasks. The Department also references its recent regulatory agenda, highlighting that we can expect a notice of proposed rulemaking to amend various regulatory provisions related to tipped employees under the FLSA.

Employers should continue to distinguish between related duties performed as part of a tipped occupation for which a tip credit may be taken and work performed in a separate, non-tipped occupation for which no tip credit may be taken. Employers should also be aware that many states maintain their own 80/20 laws, and the majority of circuits outside the Fifth Circuit (which is comprised of federal districts in Texas, Louisiana, and Mississippi) that have issued opinions since Restaurant Law Center have concluded that they are not bound by the Fifth Circuit’s ruling and instead rely on their own circuit precedent to uphold and reinforce 80/20 principles.

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

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