Quick Hits

• The IRS and Treasury Department confirmed that most employer-sponsored retirement plans generally have until December 31, 2026, to adopt discretionary amendments implementing SECURE and SECURE 2.0 provisions, with later deadlines for collectively bargained, governmental, and public school 403(b) plans.
• Required amendments, and future guidance relating to discretionary amendments that have already been adopted, may have later deadlines tied to future IRS Required Amendments (RA) lists.
• The IRS and Treasury indicated final regulations are forthcoming with respect to automatic enrollment, long-term part-time workers, and required minimum distributions.

Background

Generally, the timing for adopting retirement plan amendments depends on whether the amendment is discretionary or required. For optional plan design changes, the amendment is generally due by the last day of the plan year in which the change is implemented. In contrast, amendments required to maintain a plan’s tax-qualified status are subject to a remedial amendment period and generally must be adopted by the last day of the second calendar year following the issuance of the RA list featuring the required change.

The IRS typically adds items to an RA list after regulations are issued relating to that amendment. However, the IRS has the authority to add an item in other circumstances, such as when a statutory change is enacted but no implementation guidance is expected.

Looming SECURE Act and SECURE 2.0 Deadlines

The SECURE Act and SECURE 2.0 included required plan changes and optional plan design provisions.

Examples of discretionary SECURE and SECURE 2.0 amendments include those implementing student-loan-payment matching contributions, emergency savings accounts, Roth employer matching and nonelective contributions, domestic abuse victim distributions, terminally ill participant distributions, qualified long-term-care distributions, and the saver’s match. Guidance issued in 2024 indicated that, for most plans, the current SECURE and SECURE 2.0 discretionary amendment deadline is December 31, 2026. Collectively bargained plans generally have until December 31, 2028, and governmental plans and public school 403(b) plans generally have until December 31, 2029.

Examples of required SECURE and SECURE 2.0 amendments include changes to required minimum distributions, the Roth catch-up contribution mandate, long-term-part-time employee eligibility requirements, and mandatory automatic enrollment. Guidance has been issued on many of those requirements, but questions remain. Most plans have been working to adopt amendments for the required provisions at the same time as discretionary changes (that is, by December 31, 2026, for most plans).

Later Amendment Deadlines

The September 2026 edition of the IRS’s Employee Plans clarified that the applicable amendment deadlines are the later RA list deadlines. It notes that changes that cannot reasonably be reflected in plan language without guidance, or for which the Treasury Department and IRS expect to issue guidance, will not appear on an RA list until the guidance is issued and applicable. This gives plan sponsors awaiting guidance additional time to amend their plans.

More interestingly, perhaps, the guidance also extends the discretionary plan amendment deadline if future guidance is issued regarding the discretionary provision that makes its way on the RA list. Specifically, if additional guidance concerning the provision or its implementation is issued after the discretionary amendment is adopted, the plan has the longer remedial amendment period to adopt that change, rather than the much earlier deadline that would ordinarily apply. Thus, an amendment addressing the discretionary provisions implementing the guidance must be adopted by the end of the second plan year after the guidance is listed on the RA list.

Promise of Future Guidance

The Treasury Department and the IRS expect to issue final regulations with respect to the following provisions: (1) automatic enrollment requirements imposed by section 101 of SECURE 2.0, (2) long-term part-time requirements imposed by section 125 of SECURE and section 112 of SECURE 2.0, and (3) required minimum distribution requirements imposed by SECURE and SECURE 2.0 provisions that have not already appeared on an RA list. These provisions will be included on a future RA list after a final regulation becomes applicable.

Final regulations are generally not expected to be applicable any earlier than the plan year commencing six months following the issuance of such final regulations. For example, if final regulations are issued for a SECURE 2.0 provision on June 30, 2027, then such final regulations would not become applicable until the 2028 plan year.

Likewise, the Roth catch-up requirements under section 603 of the SECURE 2.0 Act are expected to appear on the 2027 RA list (when the final Roth catch-up regulations become applicable), so the deadline for adopting those requirements will be December 31, 2029.

Next Steps

Employers may wish to use the additional time to:

• inventory SECURE Act and SECURE 2.0 changes already implemented in operation, distinguishing discretionary design changes from required compliance updates;
• identify amendments that may depend on future IRS guidance or future RA lists;
• coordinate with a legal team, recordkeepers, third-party administrators, and document providers on amendment responsibility and timing;
• consider whether interim participant communications may help reduce confusion before formal summary plan description or summary of material modification updates are required; and
• evaluate whether amending the plan before the IRS deadline may help simplify plan documents, communications, and administration.

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

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

Carly E. Grey is a shareholder in Ogletree Deakins’ Washington, D.C., office.

David S. Rosner is a shareholder in Ogletree Deakins’ Washington, D.C., 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

• Volunteering may trigger certain duties of consideration (Rücksichtnahmepflichten) for employers.
• The specific activity is decisive, however, so each case must be assessed individually.
• As a general rule, volunteering remains a private matter.

What Is Volunteering?

Volunteering (Ehrenamt) generally means a voluntary activity that is not aimed at generating profit and benefits the public good. An expense allowance may be paid in the form of money, provided there is no genuine profit-making intent and no employment relationship exists.

The General Rule: Volunteering Is a Private Matter

Employees are generally free to organize their leisure time as they wish. For employers, this means that volunteering cannot be prohibited across the board. It becomes relevant under employment law only if the activity interferes with the employee’s work obligations, creates conflicts of interest, or affects legitimate business interests. Notification or approval requirements for secondary activities, which are regularly included in employment contracts, do not initially change this principle. They do, however, primarily give the employer an opportunity to assess whether the volunteering has a relevant connection to the employment relationship. If there is no such connection, the volunteering remains exclusively a private matter.

What Obligations May Employers Face?

As a general rule, there is no additional “right” to engage in volunteering that would give rise to claims against the employer. However, provisions are found in various special statutes, collective bargaining agreements, works agreements, or employment contracts. Accordingly, any potential claims must be assessed on a case-by-case basis.

Leaves of Absence

An entitlement to leave does not exist for every form of volunteering. For certain volunteer activities, however, the law provides entitlements to leave, often with continued payment of compensation or reimbursement claims against the responsible organization. For example, for the Federal Technical Relief Agency (THW) and the volunteer fire service, if employees are called to THW duty or, in the case of the volunteer fire service, to deployments, exercises, or training during their working hours, they must be released from work for the duration of those activities while continuing to receive their wages. Private employers can generally seek reimbursement from the municipality or the responsible authority.

Honorary judges must be released from work for the duration of their service under Section 45 (1a) sentence 2 of the German Judiciary Act (Deutsches Richtergesetz (DRiG)). Financial compensation is instead provided through claims under the German Judicial Compensation and Reimbursement of Expenses Act (Justizvergütungs- und -entschädigungsgesetz (JVEG)), including for lost time and loss of earnings. By contrast, during reservist service (although this is generally not a classic form of volunteering), the employment relationship is suspended. Private employers therefore generally do not owe regular continued wage payments.

Financial protection instead comes through special statutory benefits, particularly under the German Maintenance Security Act (Unterhaltssicherungsgesetz (USG)). Finally, candidacies for political office may also give rise to entitlements to leave. For candidates for the German Bundestag, unpaid election-preparation leave may be available under Article 48 of the German Basic Law (Grundgesetz (GG)) and Section 3 of the German Members of Parliament Act (Abgeordnetengesetz (AbgG)). For state-parliamentary and local-government mandates, the applicable state-law provisions control and may provide for leave or educational leave, depending on the state.

Special Dismissal Protection and Protection Against Discrimination

Volunteering alone does not trigger general special protection against dismissal. Many special statutes, however, contain prohibitions on adverse treatment or their own protective provisions. Honorary judges may not be dismissed because they have accepted or are performing their office; the Constitution of the State of Brandenburg (Brandenburgische Landesverfassung) goes further in Article 110 (1) sentence 2 by entirely excluding ordinary dismissal during the term of office. The THW and, generally, state-law provisions concerning the volunteer fire service and disaster relief also provide special protections against disadvantage. Political mandates and candidacies may likewise be protected.

Applications for a mandate, as well as the acquisition, acceptance, and exercise of a mandate may not result in adverse treatment at work. For Bundestag mandates, Section 2 (3) AbgG provides that termination or dismissal because of the acquisition, acceptance, or exercise of the mandate is impermissible and, otherwise, is permissible only for good cause. Protection against dismissal begins when the candidate is nominated by the party body responsible for doing so or when the election proposal is submitted. It continues for one year after the mandate ends. For state-parliamentary and local-government mandates, the applicable state law controls (see, e.g., Section 2 (3) of the Berlin State Parliament Act (Landesabgeordnetengesetz Berlin (LAbgG)).

Takeaways

Volunteering is an important part of participation in society. Under employment law, it nevertheless generally remains a private matter unless it affects the employment relationship. In that event, the legislature seeks to balance the interests of both sides: entitlements to leave, continued wage payments, and special protection against dismissal support volunteering without losing sight of employers’ legitimate interests. Individuals who volunteer deserve not only social recognition but also legal protection.

Tatjana Serbina, LL.M. is of counsel in Ogletree Deakins’ Berlin office.

Nele Büttner contributed to this article as an intern in Ogletree Deakins’ Berlin office.

Ogletree Deakins’ Berlin office will continue to monitor developments and will post updates on the Cross-Border, Employee Engagement, Germany, and Leaves of Absence blogs as additional information becomes available.

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Quick Hits

• On September 24, 2026, OSHA issued a fact sheet that includes tips for being prepared for drug overdoses, including stocking opioid overdose reversal medications and training employees to administer them.
• Sometimes opioids are implicated in suicide attempts. The OSHA guidance came during National Suicide Prevention Month, which falls in September each year.
• There were 44,564 opioid-related overdose deaths in the United States in 2025, according to the Centers for Disease Control and Prevention (CDC).

OSHA suggests these strategies for employers to be prepared in case an overdose emergency happens to an employee, customer, or visitor at the workplace:

• Keep U.S. Food and Drug Administration (FDA)-approved opioid overdose reversal medications readily available and visible at the workplace.
• Train workers on how to recognize common signs of an overdose, such as slow or stopped breathing, blue lips or skin, pinpoint pupils, and unresponsiveness.
• Train workers to administer an opioid overdose reversal medication, safely position the person, and provide support while waiting for first responders to arrive.
• Call 911 immediately when an overdose emergency occurs because the medication’s effects are temporary, and professional medical care is still needed.

Some local governments, nonprofits, hospitals, and religious congregations offer training in administering nalmefene or naloxone, which attaches to opioid receptors in the brain and blocks the effects of opioids like heroin, fentanyl, oxycodone, and morphine. The medications, in the form of a nasal spray or injection, can restore normal breathing after an overdose and generally have no effect if opioids are not present, according to OSHA.

Some states have Good Samaritan laws that protect anyone who calls 911 after observing a suspected drug overdose. In some cases, the state laws also protect anyone who administers an overdose reversal drug after a suspected drug overdose.

Next Steps

The number of opioid-related deaths has decreased in the last two years, but a drug overdose potentially could impact any workplace, regardless of location or industry. Employers may wish to consider asking employees to volunteer to be trained in administering opioid overdose reversal drugs. It may be helpful to assign an individual to keep track of the supply and replace any expired medications.

Employers can store opioid overdose reversal drugs next to first aid kits and automated external defibrillators (AEDs), as long as they are stored away from direct light and excessive heat or cold, according to OSHA. Clear signs can help people quickly find the medicine in an emergency. Alongside the overdose reversal medications, employers can store personal protective equipment, such as nitrile gloves and face masks, to protect those who administer the medication from infectious diseases in body fluids.

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

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on federal and state laws that cover Health and Safety. Premium-level subscribers have access to comprehensive law summaries, policies, and templates. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.

Michael Clarkson is a shareholder in Ogletree Deakins’ Boston 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

• Private employers with one hundred or more employees in the United States with at least one employee working in California are required to file relevant payroll employee and labor contractor employee reports each reporting year.
• Employers are currently subject to a penalty of up to $100 per employee for a first violation and $200 per employee for a subsequent violation for failing to file.
• Recent amendments under SB 464 require courts to impose civil penalties on noncompliant employers and, beginning January 1, 2027, will increase the number of reportable job categories from ten to twenty-three.
• SB 1237, which would raise the penalty for second and later violations up to $1,000, is currently pending Governor Newsom’s signature.

The New Enforcement Actions

On September 14, 2026, CRD filed separate petitions to compel compliance against two employers for failing to submit required pay data reports under California Government Code Section 12999. Both employers had previously filed pay reports but failed to continue to file reports for multiple years even after being reminded of their reporting obligations.

California Food Management LLC (d/b/a Burger King). CRD filed a petition in Los Angeles County Superior Court against California Food Management LLC, which operates Burger King fast-food restaurant franchises in California and employs hundreds of individuals throughout the state. CRD alleges that the company failed to submit pay data reports for reporting years 2023, 2024, and 2025. Notably, California Food Management had previously submitted a certified pay data report for reporting year 2022, demonstrating its awareness of the reporting obligation. Despite receiving a notice of potential noncompliance in September 2025, a notice of noncompliance in January 2026, and a notice of impending court action in April 2026, CRD alleges that the company failed to respond to any of the CRD’s notices or submit the outstanding reports. CRD is seeking penalties of $100 per employee for the 2023 reporting year and $200 per employee for each of the 2024 and 2025 reporting years, along with costs and attorneys’ fees.

Coast 2 Coast Coaching, Inc. (d/b/a Elevo and Sports for Learning). CRD filed a separate petition in San Diego County Superior Court against Coast 2 Coast Coaching, Inc., an after-school sports program operator employing more than 2,100 coaches and other employees across more than forty cities in California. CRD alleges that Coast 2 Coast failed to submit pay data reports for reporting years 2024 and 2025. Like California Food Management, Coast 2 Coast had previously filed pay data reports for reporting years 2021, 2022, and 2023, confirming its awareness of the obligation. CRD sent Coast 2 Coast a notice of potential noncompliance in September 2025, a notice of noncompliance in January 2026, and a notice of impending court action in April 2026, none of which prompted a response. CRD is seeking penalties of $100 per employee for the 2024 reporting year and $200 per employee for the 2025 reporting year, along with costs and attorneys’ fees.

A Pattern of Escalating Enforcement

These two new actions follow the same enforcement playbook CRD used in its 2023 action against Cambrian Homecare, Inc. In that case, CRD sued Cambrian Homecare for failing to file pay data reports for three consecutive years. Within three weeks of being sued, Cambrian Homecare filed all of its previously unfiled reports and ultimately agreed to pay a penalty of $70,000 for failing to submit its 2022 pay data report, plus $24,778 in litigation costs to CRD. Cambrian Homecare also agreed to timely file all future reports and consented to the court retaining jurisdiction to enforce the terms of the stipulated judgment for three years.

The new petitions suggest that CRD has refined its enforcement process, which includes escalating notice letters—from a notice of potential noncompliance to a notice of noncompliance and finally a notice of impending court action—before filing suit. In a press release discussing these filings, CRD Director Kevin Kish emphasized the agency’s resolve, stating, “These companies have been repeatedly warned. Now, we’re going to court to ensure compliance with our state’s pay data reporting laws.”

Expanding Reporting Requirements

The pay data reporting landscape continues to evolve. Senate Bill (SB) 464, which took effect on January 1, 2026, now requires covered employers to collect and store demographic information gathered by an employer or labor contractor separately from employees’ personnel records. Additionally, SB 464 requires courts to impose civil penalties on noncompliant employers upon CRD’s request. Beginning January 1, 2027, SB 464 will further increase the number of job categories that covered employers must report on from the ten EEO-1 categories to twenty-three standard occupational classification (SOC) categories.

In addition, California Senate Bill 1237, presented to Governor Gavin Newsom on August 31, 2026, would significantly raise the stakes for noncompliance with these reporting obligations. Under current law, courts shall impose civil penalties of up to $100 per employee for a first failure to file the required pay data report and up to $200 per employee for subsequent failures. SB 1237 would increase the penalty for subsequent failures fivefold—to up to $1,000 per employee—effective January 1, 2027, underscoring the legislature’s intent to drive greater compliance with pay data reporting requirements.

Key Takeaways for Employers

In light of these enforcement actions and the expanding reporting requirements, employers may want to assess their current compliance with California’s pay data reporting obligations. As the Cambrian Homecare settlement demonstrated, the financial consequences of failing to file can be significant, including penalties of up to $100 per employee for a first violation and $200 per employee for subsequent violations, plus CRD’s litigation costs. CRD’s escalating enforcement efforts suggest that a failure to make these required filings could result in legal action and potential economic consequences for nonfilers.

Ogletree Deakins’ California offices, Government Contracting and Compliance Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments with respect to California pay data reporting and will provide updates on the firm’s California, Government Contracting and Compliance, Pay Equity, and Workforce Analytics and Compliance blogs.

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NLRB Returns to Clear Standard for Addressing Abusive Employee Conduct. This week, the National Labor Relations Board (NLRB) abandoned a 2023 ruling (Lion Elastomers LLC II) that made it more difficult for employers to discipline employees for engaging in abusive conduct while simultaneously engaging in activity otherwise protected by the National Labor Relations Act (e.g., shouting racist comments while picketing). In a decision steeped in judicial and NLRB procedure, the Board determined, 3–1, that Lion Elastomers LLC II had been vacated in 2024 by the U.S. Court of Appeals for the Fifth Circuit. This week’s ruling effectively reinstates a 2020 decision that permitted an employer to discipline an employee in such circumstances as long as the employer could demonstrate it would have taken the same action in the absence of the employee’s protected activity. Ryan T. Sears and Zachary V. Zagger have the details.

President Trump Extends $100,000 H-1B Fee, Orders Interagency Coordination.

• On September 18, 2026, President Trump extended Proclamation 10973 (“Restriction on Entry of Certain Nonimmigrant Workers”) (the “2025 Proclamation”), which places a $100,000 fee on H-1B visa holders entering the United States, until September 21, 2027. According to this most recent proclamation, “The restrictions enacted by the 2025 Proclamation have proven to be highly effective but the underlying conditions necessitating the restrictions persist.” Three separate and ongoing legal challenges have been filed against the original 2025 Proclamation. Thus far, the U.S. District Court for the District of Columbia has upheld the authority of the president to enact the fee, while the U.S. District Court for the District of Massachusetts has ruled that the fee is an unauthorized use of Congress’s taxing authority. Both of those decisions are on appeal.

• On September 18, 2026, President Trump also issued an executive order, entitled, “Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program.” The executive order instructs the secretaries of state, labor, and homeland security, when adjudicating and processing H-1B related petitions or applications, to “take into account … whether the employer sponsor directly or indirectly engaged in layoffs within the previous year or plans future layoffs that negatively affect the employment of similarly situated United States workers.” The executive order further instructs the administrator of the U.S. Department of Labor’s Wage and Hour Division to “begin reviewing data related to previously submitted labor condition applications to determine whether further action against sponsoring employers is warranted.” Daniela Medrano Sullivan explains how this order may impact employers.

Justice John Marshall Harlan II. On September 23, 1971, John Marshall Harlan II, associate justice of the Supreme Court of the United States, retired from the Court due to ill health. (He died from cancer just months later on December 29, 1971.) Harlan, whose grandfather, John Marshall Harlan, was the sole dissenting vote in Plessy v. Ferguson, served on the Court from 1955 to 1971—a period generally described as the “Warren Court.” Harlan’s 1955 confirmation hearing before the Senate Judiciary Committee began the tradition of Supreme Court nominees testifying before the committee. (Other nominees had testified in the past—beginning in 1925 with nominee Harlan Fiske Stone—but it was a sporadic practice.)

A strong supporter of the First Amendment, Harlan wrote the majority opinion in the 1958 case, National Association for the Advancement of Colored People v. Alabama. In that case, the Court ruled that the Fourteenth Amendment protected the NAACP from being compelled to disclose its membership list to the State of Alabama. Harlan wrote, “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

Quick Hits

• SkillBridge does not bar background checks, but employers should apply standard background requirements consistently and not subject service members to additional scrutiny.
• SkillBridge does not create a separate recordkeeping regime, but its reporting requirements can impact the maintenance of the records.
• While SkillBridge employers can provide routine workplace perks, there are certain prohibitions on what the service member can accept under the government gift rules.

Placement Credit Under the SkillBridge Framework

Employers are required to report the placement rate of their SkillBridge participants, and the DoW-published sample Memorandum of Understanding (MOU) contemplates a high placement goal for program graduates (75 percent or higher). However, the governing authorities do not define “suitable employment” or “qualifying employment” for purposes of measuring that goal. Department of Defense Instruction (DoDI) 1322.29 instead provides that authorized participation in SkillBridge is contingent on a high probability of post-service employment with any employer upon the service member’s completion of the program and fulfillment of the service commitment. In fact, the DoDI’s “Data Metrics Elements” include the percentage of service members who receive job offers both inside and outside the local community.

Accordingly, any related employment after SkillBridge will likely count toward an employer’s placement goals even when the position is with the employer’s contractor, in a business unit different from the participant’s SkillBridge assignment, or with another employer in the same industry or area.

Background Checks

SkillBridge does not prohibit employers from conducting background checks on SkillBridge applicants. Pursuant to guidance from the U.S. Equal Employment Opportunity Commission (EEOC), employers generally may ask about an applicant’s or employee’s background or require a background check, subject to restrictions involving medical and genetic information and other applicable law.

Employers should apply screening criteria consistently to SkillBridge and non–SkillBridge applicants. Employers should be cautious not to use (or appear to use) the applicant’s military status as a basis for heightened scrutiny or place additional requirements beyond those for non–military applicants. A background-check process that appears to impose additional scrutiny based on military status could create avoidable compliance and employee-relations risk.

SkillBridge employers should also be careful not to pass on the cost of background checks to program applicants.

Recordkeeping and Participant Data

Employers may generally maintain SkillBridge participant records under their ordinary document-retention practices, while ensuring they retain sufficient information to satisfy SkillBridge placement and reporting requirements.

Given the program’s reporting requirements, it might feel as though SkillBridge imposes additional recordkeeping requirements on employers. However, the distinction between reporting and recordkeeping is important. SkillBridge reporting obligations may require employers to track placement-related data, but those reporting needs do not, by themselves, create a separate or segregated personnel record retention system. In other words, an employer that hires a participating service member would create a personnel file for the member just as it would for any other applicant, intern, or new hire. The employer would also separately keep a record of its “placement rate,” as discussed above.

Government Gift Rules

Based on government gift rules, employers may be hesitant to offer SkillBridge participants relatively minor workplace benefits or perks that they would ordinarily provide to their employees, interns, summer associates, or new hires. These would be considered “gifts” to the service member, and employers should look to the federal government-wide gift rules, rather than any SkillBridge-specific policy. Healthcare and other major employment benefits would be covered by the service member’s service while they remain on active duty, so these are not an issue.

As a general matter, all service members (and therefore all SkillBridge participants) are prohibited from accepting gifts based on their official position or from “prohibited sources.” “Prohibited sources” include entities seeking official action by, doing business with, seeking to do business with, being regulated by, or having interests substantially affected by the employee’s agency.

Routine company benefits or perks would generally be allowable for a SkillBridge participant to accept when offered on the same terms as those available to other company team members. This might include things like team-building dinners, events, or company-wide discount programs. Unless the employer is offering the perk to the SkillBridge participant solely because of his or her military status, these gifts should be acceptable, but the employer should consider federal regulations and official DoW guidance before doing so.

Conclusion

SkillBridge generally permits employers to treat participants like similarly situated applicants, interns, or incoming employees for screening, records, and routine workplace perks. The key compliance steps are to support the service member’s future employment, avoid shifting program burdens, and apply the rules consistently.

Ogletree Deakins’ Military Workforce Practice Group will continue to monitor developments involving SkillBridge and related military-transition employment programs and will provide updates on the Military Workforce, Government Contracting and Compliance, Ethics / Whistleblower, Employment Law, and Background Checks blogs as additional information becomes available.

Adam J. Crane, a member of Ogletree Deakins’ Military Workforce Practice Group, served as a judge advocate in the United States Marine Corps and currently serves in the United States Marine Corps Reserve as a senior litigator and preliminary hearing officer.

James A. Patton, Jr., co-chair of Ogletree Deakins’ Military Workforce Practice Group, served as an officer in the United States Army and the United States Army Reserve.

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Quick Hits

• Spain’s data protection authority, the AEPD, issued a formal warning to a company before its AI recruitment tool was switched on.
• EU regulators demonstrate willingness to invoke their GDPR powers and intervene at the AI procurement stage.
• The EU AI Act lists as high-risk, under Annex III, certain types of AI recruitment tools including those that screen or filter applications, and evaluate candidates throughout the recruitment process.
• High-risk recruitment AI tools trigger human oversight and transparency obligations.
• Noncompliance with the GDPR can attract fines of up to €20 million or 4 percent of global annual turnover for employers.
• Noncompliance with the EU AI Act can attract fines of up to €35 million or 7 percent of global annual turnover for employers.

The AEPD recently issued a formal preventive warning to an organisation that was preparing to deploy an AI recruitment tool that would screen and evaluate job applications, and existing employee applications for internal mobility.

The AEPD acknowledged that AI can improve the efficiency and quality of hiring processes, although it stressed that data protection safeguards must be embedded from the very outset, reflecting the GDPR principle “data protection by design and by default.”

The AEPD highlighted several specific legal requirements when it comes to deploying an AI recruitment tool. Organisations must undertake a Data Protection Impact Assessment (DPIA) before the tool is used, where the processing is likely to result in a “high risk” to individuals’ rights and freedoms. Candidates and employees must receive clear and comprehensible information about how their personal data will be processed and the role the AI tool will play in evaluating them. Human oversight of outcomes is required by both the GDPR and the EU AI Act. This must be “effective,” meaning the decision-maker must be able to critically assess the score or output generated by the system and reach their own independent conclusion, rather than simply rubber-stamping the AI’s recommendation.

Practical Considerations

For employers wishing to deploy AI recruitment tools that will be used to rank and filter applications, the first step is to determine if the tool will be assisting recruitment decisions or influencing or determining decisions.

The GDPR (Article 22) gives individuals the right not to be subjected to decisions made solely through automated processing that would have a legal or similarly significant effect on them. The AEPD warning showcases how the functioning of an AI recruitment tool, and the level of human-intervention in the process outcomes, will be central to whether or not Article 22 applies.

If the tool will be influencing decisions, employers will need to undertake a DPIA, implement appropriate safeguards, notify individuals that automated decision-making is in use, update privacy notices describing the role of AI in the recruitment process, and ensure there is human oversight and documentation relating to this particular safeguard.

Additionally, the EU AI Act Annex III lists as high-risk AI recruitment tools that screen and filter candidates—this is the case even if the tool does not make the final recruitment decision. This classification means that employers will need to take compliance steps including:

• where applicable, performing a fundamental rights impact assessment;
• establishing a protocol for human oversight which would include the ability for someone to analyse, challenge, and override outcomes, maintain an in-depth understanding of how the AI works (e.g., how it is trained, tested, guardrails in place to minimise risk of bias, can verify and explain outcomes, has in place strong audit controls);
• documenting how the recruitment process relies on AI outcomes;
• providing training to their recruitment team; and
• updating privacy notices to inform individuals that they will be subject to automated decision-making.

Regulatory Action in the EU and the Impact on U.S. Employers

As governments and tech leaders discuss the regulation of AI the AEPD warning illustrates how EU regulators have already acted and are moving earlier and more assertively to enforce data protection and AI governance requirements around automated hiring technology, even before a tool goes live.

The AI recruitment tool in question is the type of cost-saving, efficiency tool that many employers are exploring and deploying. These tools will rapidly scan through applications, assign scores, and prioritise candidates. This strategically significant tech, with sizeable upfront costs, aims to reduce costly recruitment processes by speeding up the labor-intensive steps associated with resume review, and identify the best talent.

For U.S. employers that recruit candidates located in Europe, this is a reminder to build privacy and AI compliance into the recruitment tool procurement process before new recruitment tools are deployed. If the new recruitment tool is screening and filtering applications and candidates, then it is likely high-risk AI under the EU AI Act. If the new recruitment tool is capable of making decisions, rather than simply assisting the employer, it likely meets the automated decision-making threshold of the GDPR. Both legal frameworks impose strict requirements that must be complied with.

Ogletree Deakins’ Artificial Intelligence and Innovation Practice Group, Cybersecurity and Privacy Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and provide updates on the Artificial Intelligence and Innovation, Cross-Border, Cybersecurity and Privacy, and Workforce Analytics and Compliance Practice Group blogs as additional information becomes available.

Simon J. McMenemy is the managing partner of Ogletree Deakins’ London office and co-chair of the firm’s Cybersecurity and Privacy Practice Group.

Nicola McCrudden is of counsel in the London office of Ogletree Deakins.

Lorraine Matthews, a paralegal in the London office of Ogletree Deakins, contributed to this article.

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Quick Hits

• The NLRB restored the General Motors standard for evaluating discipline when employee misconduct occurs during union or other protected concerted activity, returning to the familiar Wright Line framework used in mixed-motive discipline cases and treating the misconduct as analytically distinct from the protected activity.
• The Board treated the Fifth Circuit’s vacatur of Lion Elastomers II as leaving General Motors in place, concluding that the 2023 Board could not use the case to reinstate setting-specific standards for workplace outbursts, social media posts, coworker discussions, and picket-line conduct.
• For employers, the decision restores a more practical framework for defending discipline based on offensive, abusive, or potentially harassing conduct, particularly where the employer can show it would have disciplined the misconduct even absent the protected activity.

Moving away from an approach that gave employees more leeway when misconduct occurred in the course of protected activity, the Board returned to General Motors and the familiar Wright Line mixed-motive framework, which focuses on whether animus toward protected activity motivated the discipline while preserving an employer’s ability to show it would have disciplined the misconduct anyway. The ruling is the first example of the newly constituted NLRB’s three Republican members using their majority to move past a Biden-era precedent.

How Lion Elastomers II Gave Way to General Motors

The Board’s latest decision is the newest chapter in a years-long dispute over how to evaluate employee misconduct that occurs during union or other protected concerted activity. In 2020, the Board decided General Motors and replaced several setting-specific standards with the familiar Wright Line framework to use in cases involving abusive conduct during Section 7 activity.

Under General Motors, the Board treated the misconduct and the protected activity as analytically distinct, rather than assuming that misconduct occurring during protected activity must be evaluated as part of that protected activity.

In 2023, the Board changed course in Lion Elastomers II, overruling General Motors and restoring prior setting-specific standards for determining when misconduct during protected activity loses the Act’s protection. Those standards varied depending on the setting, including workplace discussions with management, postings on social media, coworker discussions, and picket-line conduct. As a practical matter, those standards gave employees more leeway for impulsive, heated, or offensive conduct when that conduct occurred in the course of protected activity.

The Fifth Circuit Court of Appeals later vacated Lion Elastomers II, holding that the Board exceeded the scope of the court’s remand and violated Lion Elastomers’s due process rights when it used the remand proceeding to overrule General Motors. The court emphasized that the Board had sought remand to determine whether General Motors affected the case, but then used the remand to overturn General Motors instead. On remand again in Lion Elastomers III, the Board concluded that the 2023 attempt to overrule General Motors did not survive the Fifth Circuit’s vacatur. Notably, the Board emphasized that it was not affirmatively overruling Lion Elastomers II but rather recognizing the legal effect of the Fifth Circuit’s decision.

The Return of the Wright Line Framework

The Board’s 2026 decision returns employers to the General Motors approach. Under Wright Line, the NLRB general counsel must first show that the employee engaged in Section 7 activity, the employer knew of that activity, and the employer acted with animus toward that activity sufficient to establish a causal relationship between the protected activity and the discipline. If the general counsel makes that showing, the employer may still prevail by proving it would have taken the same action even absent the protected activity.

That framework differs from the setting-specific standards revived in Lion Elastomers II. Rather than asking whether the employee’s misconduct was so egregious that it lost the Act’s protection, General Motors separates the misconduct from the protected activity and asks whether the employer imposed discipline because of the protected activity or because of the misconduct itself.

The Dissent

Member David Prouty concurred in the remand but dissented from the Board’s broader conclusion that General Motors is now extant Board precedent for future cases. In his view, the Fifth Circuit required the Board to apply General Motors in this case, but did not decide whether Lion Elastomers II retained precedential value in other cases. He also argued that the majority’s approach was inconsistent with the Board’s nonacquiescence policy, under which adverse circuit court decisions generally are treated as binding only in the case before the court. Member Prouty also pointed to the Board’s decision in Intertape Polymer Corp., in which the Board used a setting-specific standard and referenced Lion Elastomers II, as evidence that the Board has independently treated those standards as governing law.

The majority rejected that view. In its view, the Fifth Circuit had not rejected the Board’s policy choice on the merits; rather, the court held that the Board lacked authority to use this remanded case to overrule General Motors. As a result, the majority concluded that the attempted overruling of General Motors in Lion Elastomers II did not survive judicial vacatur, leaving General Motors as the operative Board precedent unless and until the Board revisits the issue in a future case.

Chair James Murphy concurred in the remand but wrote separately to emphasize that the decision should not be read as three members affirmatively voting to overrule Lion Elastomers II, and he declined to address whether Intertape Polymer independently preserved the setting-specific standards.

Key Takeaways

For employers, the decision restores a more employer-friendly standard for evaluating discipline when protected activity and misconduct occur in the same incident. The practical value of that standard will depend on the record, including whether the employer can identify the specific misconduct, tie the discipline to a neutral workplace rule, and show consistent treatment of similar misconduct outside the protected-activity context.

Employers may want to avoid disciplinary language suggesting frustration with union activity, grievance activity, group complaints, or other protected concerted activity, and instead identify the specific offensive, abusive, threatening, discriminatory, or potentially harassing misconduct at issue and the neutral workplace rule or expectation violated. Where protected activity occurred close in time to the misconduct, employers may consider documenting, where appropriate, that the protected activity itself did not factor into the decision and that the employer would have disciplined comparable misconduct the same way even absent the protected activity.

Although General Motors appears to be the operative standard going forward, the concurrence and dissent suggest that questions remain about its permanence. The Board expressly left open the possibility that the issue could be revisited in a future case, and the status of the setting-specific standards in cases outside this proceeding is not entirely settled. Employers should not treat this decision as the final word but may want to take advantage of the current framework by building strong records that support their disciplinary decisions on their own terms.

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

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Quick Hits

• AI tools can streamline employee lifecycle events, such as recruiting, hiring, evaluations, and productivity monitoring, but they can also create privacy, effectiveness, and discrimination risks.
• Employers must assess applicable local, state, federal, and international laws, conduct appropriate bias and privacy reviews, provide required notices and accommodations, and maintain meaningful human oversight.
• Companies that use AI across jurisdictions may want to establish ongoing compliance, monitoring, vendor management, and data protection practices as AI-related employment law continues to evolve.

There is an ever-increasing number of exciting AI tools that are available to companies to perform employment-related tasks, such as recruiting, hiring, employee evaluations, evaluating employee productivity and safety programs, and even offboarding employees. For example, AI tools can screen applications, parse resumes, rank candidates, create employee evaluations, evaluate pay equity, monitor drivers for fatigue, and spot fake candidates.

There are numerous advantages to using these technologies, but there is an important analysis that must be conducted when the AI is replacing human decision-making. If the technology will rank candidates and the professional who oversees reviewing resumes is unable to review all resumes, then the AI has effectively chosen the individuals who are eligible for the job. This would mean that the human decision-maker has been replaced by AI. Notably, however, many laws are not limited to tools that fully replace a human decision-maker; some also reach tools that substantially assist, materially influence, or facilitate human decisions.

The main concerns associated with these technologies center around:

• data privacy concerns if a third-party service provider has access to the data,
• effectiveness of the technology (i.e., is it doing what it claims it should do), and
• bias (whether the AI potentially creates a result that could bias a specific group).

For instance, if the AI notes that historically individuals who live in a particular neighborhood have more leadership roles and it begins choosing candidates based on neighborhood, and neighborhood correlates with a protected characteristic such as race or national origin, the tool could have an unintended discriminatory effect on individuals in that protected group. If a technology is aimed at evaluating productiveness, it might not consider that an employee has accommodations in place associated with a disability. For technologies that have an impact on employees, such as evaluations that lead to raises or being chosen for a promotion, the potential consequences, including exposure to discrimination claims, can be significant.

Federal, State, and Local Laws

Although AI use is relatively new, many laws are worth considering when implementing any AI tool, such as federal and state laws that address discrimination (e.g., Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act), accommodations, and conducting background checks (e.g., the Fair Credit Reporting Act).

In addition to these existing laws that may apply to any new AI tool, there are specific state and local laws and regulations that could require notice of use, bias audits, and risk assessments. For example, New York City’s Local Law 144 requires employers that use automated employment decision tools for hiring or promotion to obtain an independent bias audit, publish a summary of the results, and notify candidates and employees. California’s civil rights regulations allow evidence of anti-bias testing, or its absence, to be considered in discrimination claims, and its privacy regulations will require risk assessments, notices, and opt-out and access rights for certain automated employment decisions beginning in 2027. Illinois prohibits using AI that has a discriminatory effect or using zip codes as a proxy for protected classes and requires notice of AI use, and Colorado, Connecticut, and Texas have also enacted AI-related requirements.

Other jurisdictions require, or will soon require, companies to provide individuals with an explanation as to how their AI tool works, and in particular what factors and criteria were used in making the determination. Individuals may also have the right to request that a human review the results in certain jurisdictions.

It is reasonable to anticipate that AI use will be subject to additional laws and regulations moving forward, and litigation is already active, including pending cases testing whether AI vendors can be liable alongside employers for discriminatory screening and whether AI-generated applicant scores trigger federal consumer reporting laws. Because bias testing results may become evidence in such disputes, companies may want to conduct bias audits at the direction of counsel to help preserve attorney-client privilege, although privilege may not cover underlying data or results that must be published, such as New York City’s bias audit summaries.

Bias testing also is not a one-time exercise. Tools can change as they are updated or as the data they process shifts, and New York City, for example, requires a bias audit conducted no more than one year before a tool is used. Companies adopting AI for employment decisions may therefore want to plan for ongoing bias monitoring as a recurring cost of using these tools.

Questions to Consider Before Purchasing an AI Tool

In considering how a company will use AI, understanding which obligations may attach to the particular AI tool and the proposed use can help inform the decision. Questions companies may want to consider before purchasing an AI tool can be grouped into two categories: “Regulatory scope, effectiveness, and fairness” and “Data privacy and security.”

Regulatory scope, effectiveness, and fairness

• Is the proposed use subject to regulation? If so, what are the regulatory obligations? Can the company comply with the regulations? Does the proposed AI use warrant the effort and expense to comply with the regulatory obligations? Is the company prepared to budget for ongoing bias monitoring?
• How does the tool work? Is it possible to explain the results to individuals or to have the results reviewed by a human?
• Is the tool effective, i.e., is it doing what it is intended to do?
• Does the tool discriminate, or indicate bias against individuals in a particular group? Will the company test for bias with its own data, is there a plan for ongoing monitoring, and is the testing structured to help preserve privilege?
• Can the company provide reasonable accommodations, such as an alternative assessment or process, for applicants and employees with disabilities who may be disadvantaged by the tool?
• If the tool is provided by a vendor, do the contract terms address bias risks, cooperation with audits, and allocation of liability?

Data privacy and security

• Does the tool comply with applicable data privacy laws?
• Has a data protection impact assessment or similar privacy risk assessment been conducted, as required under applicable law, to evaluate the risks the tool poses to individuals whose data is processed?
• Does the tool involve automated decision-making or profiling that produces legal or similarly significant effects on individuals? If so, can the company provide meaningful information about the logic involved and ensure human oversight?
• Does the company have adequate notice and consent mechanisms in place to inform employees and applicants about the use of the AI tool, the categories of data collected, and the purposes of processing?
• Does the tool adhere to data collection and retention principles, i.e., does it collect and retain only the personal data that is necessary for the stated purpose, and does the company have a retention schedule that complies with applicable law?
• If the tool is provided by a third-party vendor, has the company entered into a data processing agreement or equivalent contractual arrangement that addresses the vendor’s obligations regarding data security, sub-processing, breach notification, and data return or deletion?
• Does the tool transfer personal data across borders? If so, has the company ensured that adequate safeguards are in place to comply with cross-border transfer restrictions under applicable laws?
• Does the tool have appropriate technical and organizational security measures in place to protect personal data against unauthorized access, loss, or breach, consistent with applicable cybersecurity requirements and industry standards?
• Does the tool process any categories of sensitive personal data (e.g., health information, biometric data, or data revealing racial or ethnic origin)? If so, are enhanced protections and retention required under the Health Insurance Portability and Accountability Act (HIPAA), the Illinois Biometric Information Privacy Act, and similar laws being satisfied?
• Can the company honor individual rights requests in connection with the tool—including rights of access, correction, deletion, portability, and the right to opt out of automated decision-making as required under applicable privacy laws? If a vendor processes the data, is there a data processing agreement addressing security, sub-processing, breach notification, and data return or deletion?

When implementing any AI tool, companies with a global workforce may be subject to the laws of multiple jurisdictions. The European Union’s AI Act, for example, establishes a comprehensive regulatory framework that classifies AI systems by risk level and treats many AI tools used in recruitment and workforce management as high-risk. Employers that purchase such tools from vendors may be “deployers,” with obligations that include human oversight, monitoring, and informing workers’ representatives and affected workers before use, scheduled for effect in 2027.

Beyond the EU, many countries have their own patchwork of laws that may be triggered by AI use in the employment context. For instance, in Ontario, Canada, some employers are required to indicate the use of AI in job postings, and in Quebec employers are required to have transparency around the use of AI and employees have the right to request human review; each Canadian province has its own discrimination and accommodation laws that can be implicated by the deployment of AI tools. For companies operating across borders, obligations can vary significantly by jurisdiction, making a jurisdiction-by-jurisdiction view of the applicable local, national, and supranational requirements governing AI in the workplace particularly important.

As companies embrace this expanding and dynamic technology, seeing the whole picture, including the regulatory landscape, is critical in determining what AI tool to purchase and how to use it.

Ogletree Deakins’ Artificial Intelligence and Innovation Practice Group, Cybersecurity and Privacy Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will post updates on the Artificial Intelligence and Innovation, Cross-Border, Cybersecurity and Privacy, State Developments, and Workforce Analytics and Compliance blogs as additional information becomes available.

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On September 23, 2026, the New York State Department of Labor published, on page 9 of the New York State Register, a proposed rule, “Opioid Antagonists in the Workplace,” clarifying how employers must comply. The rule addresses how many opioid antagonists employers must keep on-site, where to store them, and how to train employees. This proposed rule is open for public comment until November 22, 2026.

Quick Hits

• Covered employers must stock a sufficient supply of opioid antagonists in accessible locations and communicate those locations to employees.
• At least one trained employee must be present during business hours at each workplace.
• The rule covers private employers required by OSHA to maintain first aid supplies. Government employers are excluded.
• No fixed number of units is prescribed; employers assess sufficiency based on workplace size, layout, staffing, and overdose history.
• No new reporting or recordkeeping requirements are imposed, and compliance costs are expected to be low.

Key Definition: ‘Opioid Antagonist’

The proposed rule defines “opioid antagonist” by reference to Public Health Law § 3309(3)(a)(i) as a drug approved by the Food and Drug Administration (FDA) that negates or neutralizes opioid effects in the body. The rule limits this to naloxone and other medications approved by the New York State Department of Health.

Covered Employers

The rule applies to private employers that OSHA requires to have first aid supplies readily available. This includes any person, corporation, LLC, or association employing individuals in any occupation, industry, trade, business, or service. Government employers—including the state, political subdivisions, public authorities, and other governmental agencies—are excluded.

The term “workplace” means any location where an employer is required by 29 C.F.R. 1910.151 to have first aid supplies readily available.

Quantity and Placement Requirements

The proposed rule does not prescribe a specific number of opioid antagonists. Instead, employers must maintain a “sufficient number” to enable a quick response to a suspected overdose.

Relevant factors include:

• the size and physical layout of the workplace;
• the number of people working in or accessing the site;
• whether high-risk populations access the workplace;
• whether the nature of the work creates a higher-than-average overdose risk; and
• whether any suspected overdoses have previously occurred on-site.

Under the proposed rule, opioid antagonists must be stored in easily accessible areas. Employees should not have to travel through multiple doorways, hallways, or stairways to reach them. Employers should consider placing them alongside automated external defibrillators (AEDs) and other first aid supplies in a central, conspicuous location protected from tampering or theft. Locked rooms or restricted-access areas are discouraged. However, employers with legitimate security concerns may use such locations if they ensure trained employees can still access the supply quickly.

Packaging and Instructions

The proposed rule requires that opioid antagonists remain sealed in the manufacturer’s original packaging and be stored with the manufacturer’s instructions. If those instructions are unavailable, employers must provide instructions from the New York State Department of Health, the New York City Department of Health and Mental Hygiene, or New York State’s Drug User Health Training Center of Expertise.

Employee Training

The proposed rule requires that at least one employee trained in opioid antagonist administration must be present during business hours. Employers are encouraged to train additional volunteers and may choose to train all employees.

Training must be consistent with materials from a department of health in New York State and should cover at least the following topics:

• recognizing symptoms of an opioid overdose;
• administering an opioid antagonist;
• steps to take before and after administration, including contacting first responders; and
• “Good Samaritan” protections under Public Health Law § 3000-a.

Inspection, Replacement, and Disposal

Employers must regularly inspect their opioid antagonist supply to ensure units are not expired, tampered with, or missing. Expired, used, tampered, or missing units must be replaced promptly—as soon as the employer becomes aware or should have become aware of the need. Expired or used opioid antagonists must be properly disposed of.

Multi-Employer Worksites

Employers sharing a workplace may jointly satisfy the rule’s requirements. If they do so, they must document their joint compliance plan in writing and make it available to the Commissioner upon request.

‘Good Samaritan’ Protections

The proposed rule confirms that administering an opioid antagonist under this rule is considered first aid or emergency treatment under Public Health Law § 3000-a. This provides Good Samaritan protections to employees who administer the medication.

Key Employer Considerations

Although the proposed rule has not yet been adopted, employers may want to begin preparing now. The following considerations may be instructive and helpful to employers seeking to ensure a smooth transition once the rule takes effect:

• Determining coverage. Employers will want to confirm whether their organizations are employers covered under the OSHA first aid requirement at 29 C.F.R. 1910.151. If so, the proposed rule will in all likelihood apply to the workplace.
• Conducting a workplace assessment. Evaluate each worksite using the factors identified in the rule—size, layout, staffing levels, populations at risk, nature of the work, and overdose history—to determine how many opioid antagonists are sufficient and where they should be placed.
• Identifying and training employees. Consider recruiting employee volunteers to receive opioid antagonist training. At a minimum, ensure that at least one trained employee is present during business hours at each location. Account for absences, turnover, and shift changes.
• Procuring opioid antagonists. Naloxone is widely available and relatively inexpensive Various state programs provide it without charge. Ensure units are in the manufacturer’s original packaging and accompanied by approved instructions.
• Establishing inspection and replacement protocols. Set up a regular inspection schedule to check for expiration, tampering, or missing units, and create a process for prompt replacement and proper disposal.
• Communicating locations to employees. Develop a communication plan—through signage, onboarding materials, workplace safety bulletins, or other means—so all employees know where opioid antagonists are stored.
• Addressing multi-employer sites. If a worksite is shared with other employers, consider coordinating with those employers to develop a written joint compliance plan.
• Submitting public comments. The comment period closes sixty days after publication, on November 22, 2026. Employers with concerns about the rule’s practical application should consider submitting comments to the New York State Department of Labor at regulations@labor.ny.gov.

Ogletree Deakins’ New York offices, Drug Testing Practice Group, and Workplace Safety and Health Practice Group will continue to monitor developments and provide updates on the Drug Testing, New York, and Workplace Safety and Health blogs as this rulemaking proceeds.

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