Quick Hits

• In Lott v. Recker Consulting LLC, a “boot-up time” case, the U.S. District Court for the Southern District of Ohio ruled that compensable time begins for remote call center workers when they start operating programs that are integral to their work. Likewise, compensable time ends when the worker closes the last program.
• The court found that turning on a computer, typing in usernames and passwords, and opening applications are preliminary activities and not compensable time. Likewise, it found shutting down the computer, locking the screen, or putting it in sleep mode are postliminary activities and not compensable time.
• The time needed to access or start up applications and programs integral to performing one’s job duties is considered compensable.

Background on the Case

In August 2023, workers for a patient call center brought a class action against Recker Consulting LLC, an IT firm, and LYP Call Center, claiming they were not paid for compensable time under the federal Fair Labor Standards Act (FLSA). Recker Consulting was the employer for these employees until November 2022, when a corporate rebranding took place and LYP became their employer.

The 130 workers who joined the FLSA claim by filing opt-in consent forms were hourly, nonexempt employees who were expected to work forty hours per week for a call center that served healthcare providers. They alleged Recker Consulting and LYP violated the FLSA and related Ohio laws by failing to pay them for time they spent booting up their computers and logging in at the start of the day, booting up their computers and logging in after their meal break, and shutting down the computer at the end of the day. They also alleged that the employers’ time-rounding policies were impermissible under the FLSA. They also sought overtime pay for the time worked beyond forty hours per week.

Working remotely at home, these employees fielded requests and questions from patients, using a laptop, multiple monitors, keyboard, mouse, docking station, phone system, electronic medical record systems, and other software. For example, the named plaintiff said she would start the workday by turning on her computer, entering a username and password, dual authenticating through a security platform, and opening her timekeeping program, a corporate collaboration platform, a telephone directory database, the app-based phone system, and mapping software. Employees clocked in by starting their timekeeping program on a website or a smartphone app. The entire process often took five to ten minutes.

Furthermore, the plaintiffs claimed the companies required them to complete tasks that took up part of their unpaid meal breaks, which were thirty minutes for each eight-hour shift. The employees said they would change their status in the phone system to unavailable and clock out of the timekeeping system at the start of their meal break, and it would take several minutes to restart all of their programs when the meal break was over. This time was not compensated.

Then, at the end of the workday, it would take about five minutes to notify a supervisor they were leaving for the day on the collaboration platform, exit out of the phone system, clock out on the timekeeping program, close other programs and applications, and shut down the computer. Similarly, that time was not compensated.

Recker Consulting and LYP argued that the time spent on pre-shift and post-shift activities was not compensable because it was preliminary and postliminary. Assuming the time was compensable, Recker Consulting and LYP also argued it was de minimis, and therefore it could be disregarded.

In the employee handbook of 2022-23, the employees were instructed to clock in no sooner than five minutes before their shift and clock out no later than seven minutes after their shift. They were told they were not allowed to work overtime without permission, and violating that rule could result in disciplinary action or termination. The 2022-23 handbook clarified that the workers were allowed a “5-minute grace period” to allow for computer and phone systems to boot up, but “this should only be used occasionally.” The workers needed to be signed into the phone system and “have loaded ‘all job-related software’ by their scheduled shift time to avoid a tardy designation.” Those who accumulated enough points for tardiness under the handbook’s point system could be subject to disciplinary action.

Recker Consulting and LYP maintained a policy to round clock-in and clock-out times either up or down to the nearest quarter-hour increment. The timekeeping system only recognized quarter-hour increments. The employees alleged the timekeeping system violated federal regulations by consistently benefiting the employer. Recker Consulting and LYP argued that the time-rounding policy was legally permissible because “it was neutral as written and in application.”

The Court’s Analysis

To determine when the workday starts and ends for remote workers doing computer tasks, the court noted that “work” under federal law means “all activities which are an integral and indispensable part of the [employee’s] principal activities.” This includes physical or mental exertion “controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” The court emphasized that the FLSA focuses on whether an activity, not a tool, is integral to the work.

In this case, the court said it remained “unconvinced that the simple act of waking up or pressing the power button of a computer makes that act an “integral’ part of ‘the productive work that the employee is employed to perform.’” It reasoned that turning on a computer could lead to activities that are unrelated to work, like reading a news article.

However, the court concluded that the time employees spent accessing the phone system, directory database, or a client’s electronic medical record system was compensable.

The court granted Recker Consulting and LYP’s motion for summary judgment in part. It concluded that it would be premature to apply the de minimis doctrine, which applies to time that is so minuscule that it is too difficult to record for payroll purposes.

While the time-rounding policy was neutral on paper, the court stated, it was likely to favor the employers when combined with the employers’ clock-in, clock-out, and tardiness policies. Thus, the court allowed the claims regarding time rounding to proceed. Time-rounding policies are permissible if they do not result in a failure to pay workers for all the hours they worked over a period of time.

It is noteworthy that this court’s decision conflicts with similar boot-up cases in other courts in which those courts have found that compensable time begins when the computer is turned on in physical call centers. The U.S. District Court for the Southern District of Ohio believes this case is the first published decision to address boot-up and shut-down time in a remote-work setting.

Next Steps

This case sheds light on when employers must pay their nonexempt remote call center workers for time spent on activities before a shift, after a shift, or during a meal break. The court allowed certain claims to proceed in this case, as they related to uncompensated time spent on principal activities, including those that are integral and indispensable for work, but it dismissed claims for time spent simply engaging with the computer.

Employers may wish to review their timekeeping and time-rounding policies to ensure they comply with state laws and the FLSA.

Although the focus of the case was boot-up time, the case delivered several additional legal nuggets of great interest to practitioners in this area. First, the court shed some light on the practical applications of the Sixth Circuit Court of Appeals’ Clark standard, which upended the traditional two-certification process for class actions under the FLSA. Because dispositive motions were filed before class certification, the court held that its partial dismissal order will “not have res judicata effect as to those currently-only-conditional parties.” That means this court order does not prevent parties from relitigating the same claims in the future.

Second, in a footnote, the court clarified that the Ohio state claims “rise and fall” with the FLSA claims.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employment Law and Wage and Hour blogs as new information becomes available.

Rebecca J. Bennett is a shareholder in Ogletree Deakins’ Cleveland office.

Keith E. Kopplin is a shareholder in Ogletree Deakins’ Milwaukee office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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Quick Hits

• The NLRB filed a lawsuit alleging that a New York law allowing the state to assert jurisdiction in private‑sector labor disputes “unlawfully usurps” its authority and is preempted by federal law.
• The lawsuit comes as the NLRB currently has only one member, David Prouty, and lacks a quorum to issue decisions.
• The litigation raises questions about the extent to which state laws are preempted under the National Labor Relations Act (NLRA).

On September 12, 2025, the NLRB filed suit in the U.S. District Court for the Northern District of New York, alleging that the New York law “unlawfully usurps the NLRB’s authority by attempting to regulate areas explicitly reserved for federal oversight, creating a parallel regulatory framework that conflicts with the NLRA.” The NLRB seeks a declaration that the law is preempted and an injunction barring New York from enforcing it.

New York Senate Bill 8034A / Assembly Bill 8590A (S.8034A/A8590A), which Governor Kathy Hochul signed on September 5, 2025, authorizes the New York State Public Employment Relations Board to assert jurisdiction over disputes between private employers, employees, and unions when the NLRB is unable to act effectively. Supporters contend the legislation is necessary if the NLRB cannot do so and is not preempted when the NLRB is functionally ineffective.

The NLRB alleges the law “creates a parallel regulatory system that undermines the federal labor policy Congress designed to be national in scope” and “creates an instant conflict with the federal scheme because it disrupts the NLRB’s exclusive authority to regulate most private‑sector labor relations.”

The lawsuit follows media comments by NLRB Acting General Counsel William Cowen, who called the New York law an attack on the NLRB’s “core jurisdiction” and defended the agency’s ability to handle its duties, including representation petitions, union elections, certification of bargaining representatives, and adjudication of labor disputes.

Turnover at the NLRB

The NLRB enforces the NLRA, conducts representation elections, adjudicates unfair labor practices, and oversees other labor relations issues involving most private employers, employees, and unions. Generally, states may not regulate activities protected, prohibited, or otherwise covered by the NLRA, which the Supreme Court of the United States has held preempts state and local laws.

Vacancies at the NLRB have complicated the issue and likely contributed to New York’s adoption of S.8034A/A8590A. The five‑member Board has lacked a quorum necessary to issue binding decisions since President Donald Trump removed Member Gwynne Wilcox (aside from a brief period when a federal court reinstated Wilcox, a ruling later stayed by the Supreme Court). At the time of Wilcox’s removal, two Board seats were already vacant. Member Marvin Kaplan’s term expired on August 27, 2025, leaving the Board with a single member, David Prouty. Although the president has nominated two individuals to the Board, Scott Mayer and James Murphy, both must still be confirmed by the full U.S. Senate.

Next Steps

New York’s attempt to assert jurisdiction over federal labor relations issues is the latest development in the evolving labor law landscape under the Trump administration. Although this development has created additional uncertainty for employers, it could open the door to new federal labor law developments, including potential legislative changes to the NLRA. The NLRB’s lawsuit over New York S.8034A/A8590A should prove instructive for other states considering stepping in with additional labor regulations to address perceived gaps at the federal level.

Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Governmental Affairs, New York, and Traditional Labor Relations blogs as additional information becomes available.

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

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Quick Hits

• California’s new AI regulations, effective October 1, 2025, prohibit the use of AI tools that discriminate against applicants or employees based on protected characteristics under the Fair Employment and Housing Act (FEHA).
• Employers are required to keep all data related to automated decision systems for four years and are held responsible for any discriminatory practices, even if the AI tools are sourced from third parties.
• The regulations target AI tools that cause disparate impacts in various employment processes, including recruitment, screening, and employee evaluations, while allowing legal uses of AI for hiring and productivity management.

Question 1: What are California’s new algorithmic discrimination regulations?

Answer 1: The new AI regulations prohibit the use of an ADS or AI tool that discriminates against an applicant or employee on any basis protected by FEHA. The new regulations will make the state one of the first to adopt comprehensive algorithmic discrimination regulations regarding the growing use of AI tools to make employment decisions.

Q2: When are the regulations effective?

A2: On October 1, 2025.

Q3: What exactly is an ADS?

A3: An ADS is “[a] computational process that makes a decision or facilitates human decision making regarding an employment benefit,” including processes that “may be derived from and/or use artificial intelligence, machine-learning, algorithms, statistics, and/or other data processing techniques.” (Emphasis added.) Many AI hiring tools fall within this definition.

Q4: Are employers prohibited from using all AI tools?

A4: No. The regulations do not prohibit any particular tool or limit the legal ways in which employers may use AI tools, including to source, rank, and select applicants; facilitate the hiring process; and monitor and manage employee productivity and performance. Instead, they prohibit the use of any AI tool to discriminate intentionally or unintentionally against applicants or employees based on their membership in any class of employees protected from discrimination under FEHA.

Q5: Who is an “applicant”?

A5: An “applicant” is “[a]ny individual who files a written application or, where an employer or other covered entity does not provide an application form, any individual who otherwise indicates a specific desire to an employer or other covered entity to be considered for employment. Except for recordkeeping purposes, “Applicant” is also an individual who can prove that they have been deterred from applying for a job by an employer’s or other covered entity’s alleged discriminatory practice.” ‘Applicant’ does not include an individual who without coercion or intimidation willingly withdraws their application prior to being interviewed, tested or hired.”

Q6: What conduct is targeted?

A6: The regulations seek to limit the use of AI tools that rely on unlawful selection criteria and/or cause a disparate impact in the areas of recruitment, screening, pre-employment inquiries, job applications, interviews, employee selection and testing, placement, promotions, and transfer. The California Civil Rights Department (CRD) identifies several examples of automated employment decisions potentially implicated by the regulations.

• “Using computer-based assessments or tests, such as questions, puzzles, games, or other challenges to: [m]ake predictive assessments about an applicant or employee; [m]easure an applicant’s or employee’s skills, dexterity, reaction-time, and/or other abilities or characteristics; [m]easure an applicant’s or employee’s personality trait, aptitude, attitude, and/or cultural fit; and/or [s]creen, evaluate, categorize, and/or recommend applicants or employees”
• “Directing job advertisements or other recruiting materials to targeted groups”
• “Screening resumes for particular terms or patterns”
• “Analyzing facial expression, word choice, and/or voice in online interviews”
• “Analyzing employee or applicant data acquired from third parties”

Q7: Are there new record-keeping requirements?

A7: Yes. Employers must keep for four years all automated-decision system data created or received by the employer or other covered entity dealing with any employment practice and affecting any employment benefit of any applicant or employee.

Q8: Who can be held responsible for algorithmic discrimination?

A8: Employers will be held responsible for the AI tools they use, whether or not they procured them from third parties. The final regulations also clarify that the prohibitions on aiding and abetting unlawful employment practices apply to the use of AI tools, potentially implicating third parties that design or implement such tools.

Q9: Are there available defenses?

A9: Yes, claims under the regulations are generally subject to existing defenses to claims of discrimination. The regulations also clarify that “evidence, or the lack of evidence, of anti-bias testing or similar proactive efforts to avoid unlawful discrimination, including the quality, efficacy, recency, and scope of such effort, the results of such testing or other effort, and the response to the results” is relevant to a claim of unlawful discrimination.

Q10: What should employers do now?

A10: Employers may want to consider the following steps:

• Reviewing internal AI tool usage, practices, procedures, and policies to determine whether any tool being used would be covered by the regulations.
• Piloting proposed AI tools before rolling them out to the workforce. This includes thoroughly vetting the steps taken by AI developers to avoid algorithmic discrimination.
• Training the workforce on the appropriate use of AI tools.
• Notifying applicants and employees when AI tools are in use, and providing accommodations and/or human alternatives where required.
• Establishing an auditing protocol. Although auditing is not required by the regulations, the act of engaging in anti-bias testing or similar proactive efforts may form the basis for a defense to any future claims of algorithmic discrimination. The regulations also suggest that a factfinder may also consider the quality, efficacy, recency, and scope of any auditing effort, as well as the results of and response to that effort.
• Reviewing record-keeping practices to be sure required data can be securely maintained for at least four years.

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

For further information, please join us for our upcoming webinar, “California’s New AI Employment Law Takes Effect October 1—Are You Ready?,” which will take place on September 29, 2025, from 2:00 p.m. to 3:00 p.m. EDT. Jennifer G. Betts will interview Danielle Ochs on how the AI and ADS rules will affect employers, and discuss strategies for complying with California’s antidiscrimination laws. Register online at www.ogletree.com or email webinars@ogletree.com.

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Quick Hits

• Workplace investigations are becoming increasingly complex and nuanced, forcing employers to proactively consider how to conduct such investigations and avoid common pitfalls.
• Employers may want to review protocols to ensure investigations account for evolving work environments and changing workforces and are conducted in a manner that promotes credibility and confidence in the outcome.

1. Overall Increase in Investigation Volume, Nuance, and Complexity

The landscape of internal complaints is changing dramatically. Employees are more willing to speak up and are increasingly demanding in their expectations. This shift has led to a rise in overall complaints, in particular complaints that raise systemic issues or so-called reverse discrimination claims and complaints regarding political expression in the workplace.

2. Mental Health Vocalization Has Increased

Employees are now more likely to raise mental health as a concern than ever before. This trend impacts witness interviews and the overall investigation process. Not only are employees raising concerns over the impact on their mental health by conduct in the workplace, but they are also raising concerns that the investigatory interview is a source of feeling psychologically unsafe. Ensuring employees feel safe and supported during investigations is crucial for obtaining accurate and reliable information. Employers may want to emphasize psychological safety throughout investigations and be prepared to address mental health concerns sensitively and effectively.

3. Remote Work Introducing New Complications

The post-COVID prevalence of remote work has introduced new challenges for workplace investigations. Remote work environments can lead to coworkers having fewer interpersonal interactions, which causes employees to not know each other. Moreover, remote work allows for a platform of inappropriate on-camera behavior, comments, and other unprofessional behavior. And in some ways, the lack of employees knowing each other has exacerbated the problem. At the same time, conducting investigations involving remote employees or workforces can be more complicated, particularly when conducting remote witness interviews. Employers may want to incorporate “proper remote conduct” protocols into their training programs to address these issues proactively.

4. Return to Office Uptick in Inappropriate Employee Conduct

With pandemic concerns waning, more and more employers are requiring employees to return to the office at least for part of the workweek. However, transitioning from remote to in-person interactions can be challenging as many employees need to relearn appropriate in-person behaviors. This is especially prevalent at employee social events such as conferences and other group events. Incidents often escalate into situations or disputes that require investigation. Employers may want to consider policies concerning appropriate social interaction at in-person events to help employees navigate these interactions appropriately.

5. Increased Ability to Manipulate Information

The emergence of artificial intelligence (AI) and deepfake technology has made accurate information gathering in workplace investigations more complicated, so employers may want to ensure that these technologies are considered during investigations. Employers have access to technology to gather more electronic evidence, such as texts, chats, and data captured on smartphone cameras and voice recorders. Technology also makes it possible to fabricate or falsify evidence. Thus, credibility assessments and corroborating evidence are even more critical for investigators. Organizations may want to consider utilizing forensic computer specialists to address concerns about manipulated emails and documents.

6. Post-Separation Grievances More Common

There has been an increase in post-separation complaints, with former employees raising issues during or after leaving the organization. Employers may want to look for “investigation triggers” in resignation letters, exit interview statements, and close-out emails that signal a post-separation complaint. Such “triggers” may prompt the need for an investigation. Moreover, dismissing post- or during-separation complaints as “sour grapes” is not a viable defense. These are serious allegations, so organizations may want to analyze them through normal protocols to determine whether an investigation is warranted.

7. Investigation Process Matters

Given the heightened complexity of workplace complaints and investigations, conducting investigations in a manner that promotes credibility and confidence in the organization is increasingly important for employers. Workplace investigations are not just about the result. The process of the investigation and making sure employees are and feel heard is an important part of the process.

8. HR Departments Are Incredibly Busy and Can Lack Sufficient Bandwidth

The increase in complaints has overtaxed many human resources (HR) departments, leading to botched investigations and increased litigation. Organizations may want to consider training staff on conducting investigations and the potential benefits of outsourcing investigations. Lack of training is a common way to challenge investigations, making investing in proper training and resources essential.

9. Longer Investigations and Increased Costs

Remote and video investigations and the sheer volume of data and documents to review have extended the duration and increased the length and cost of workplace investigations. Employers may want to ensure that texts, call logs, recordings, emails, chats, and photos are meticulously reviewed. In some cases, a forensic expert may be required.

10. Investigations Being Challenged in Court

Workplace investigations are increasingly becoming the centerpieces of litigation. While an issue might arise from a relatively minor act of harassment or discrimination, the focus of lawsuits often shifts to allegations that the employer failed to fully or properly investigate. Common challenges to investigations include allegations that the employer failed to promptly investigate, did not properly or sufficiently document the investigation, and/or failed to reach conclusions. Additional challenges include allegations of investigator bias and whether the investigation is confidential and privileged. Employers may want to carefully consider the potential legal challenges to the credibility and validity of an investigation before and during the investigation.

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

A version of this article was previously published in an ACC Mid-America Chapter member newsletter.

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Quick Hits

• The Eleventh Circuit ruled that a county health insurance plan’s exclusion of gender-affirming surgery did not violate Title VII, interpreting protections for LGBTQ+ individuals narrowly.
• The court concluded that the plan’s policy was not facially discriminatory since it applied equally to all employees regardless of sex.
• A dissenting opinion argued that the ruling improperly relied on a precedent that should not apply to Title VII discrimination cases involving medical conditions that impact employees differently based on sex.

Background

In Lange v. Houston County, Georgia, a transgender woman who served as a deputy in the Houston County Sheriff’s Office alleged that the county health insurance plan violated Title VII on its face because it discriminated on the basis of sex and penalized individuals for being transgender after being denied health insurance coverage for a gender-affirming procedure under an exclusion for “sex change surgery.”

However, in a divided en banc opinion, the Eleventh Circuit rejected such arguments, finding that the county employee health insurance plan did not violate Title VII since it excluded procedures for both male and female employees (for either a male-to-female transition or a female-to-male transition) and did not otherwise discriminate based on “transgender status.”

“The County’s plan draws a line between certain treatments, which it covers, and other treatments, which it does not. That line may or may not be appropriate as a matter of health care policy, but it is not facial discrimination based on protected status,” the Eleventh Circuit en banc majority wrote.

Title VII and Discrimination on the Basis of Sex or ‘Transgender Status’

The sheriff’s deputy had argued the exclusion discriminated on the basis of sex under the Supreme Court of the United States’ 2020 decision in Bostock v. Clayton County, Georgia, which held that Title VII prohibits an employer from firing workers for being gay or transgender.

However, the Eleventh Circuit interpreted Bostock narrowly in the context of the Supreme Court’s more recent June 2025 ruling in United States v. Skrmetti, which held that a Tennessee law prohibiting gender-affirming care for minors did not violate the Equal Protection Clause of the Fourteenth Amendment. There, the Supreme Court noted that in Bostock it had “reasoned that Title VII’s ‘because of’ test incorporate[d] the traditional but-for causation standard” for analyzing unlawful sex discrimination, whereby courts will “change one thing at a time and see if the outcome changes.”

“The Supreme Court’s reasoning in Skrmetti applies equally here,” the Eleventh Circuit stated. “The County’s policy does not pay for a sex change operation for anyone regardless of their biological sex.”

Moreover, the court stated that the county’s plan did not unlawfully discriminate based on transgender status,” as the plan’s coverage reflected a “‘classification based on medical use’” and “would cover the procedures that make up a sex change for other purposes, such as treatment for cancer or reconstructive surgery following a car accident, whether or not the employee who needed those procedures was transgender.”

The court pointed out that the Supreme Court has not “held that transgender status is separately protected under Title VII apart from sex,” reading the Bostock decision narrowly as applying only to the question of “‘whether an employer who fires someone simply for being … transgender’” has violated Title VII.

Even if transgender status were separately protected, the Eleventh Circuit majority stated, the plan still did not facially discriminate based on transgender status because sex was not the “but-for cause” as to why the county employee was not covered. The plan did not specifically penalize transgender individuals by making them pay more or by denying other covered treatments to transgender employees, the court reasoned.

The court rejected the argument that the plan discriminated based on gender stereotypes, finding it excluded coverage “regardless [of] whether the goal [was] to differ from, or align with, natal sex.” Finally, the appellate court found that the plan did not unlawfully penalize individuals transitioning, as it simply “decline[d] to extend a benefit—namely, coverage for sex change operation,” a benefit it “declined to everyone.”

However, a dissenting opinion of five judges argued the majority had improperly relied on Skrmetti since it was an Equal Protection Clause case and Title VII does not permit the sort of “line drawing” between certain covered and uncovered treatments that the plan engaged in when it involves “medical condition[s] that “impact[] employees differently based on sex.”

Next Steps

The Lange decision is significant, at least pertaining to whether a coverage exclusion for gender-affirming surgery is discriminatory on its face in the Eleventh Circuit. However, the Eleventh Circuit expressly did not address the issue of whether the health plan exclusion lacked a legitimate justification, noting that the district court had determined that the “County’s reason for the policy was a matter of genuine dispute and could not be resolved at summary judgment.”

Moreover, while this decision might foreclose an argument that this type of exclusion is facially discriminatory under Title VII in the Eleventh Circuit, there are other theories that employees could use to challenge similar exclusions. Employers may want to carefully review their health benefit plans prior to making any changes. This is especially relevant for employers that have locations and employees in multiple states, where there may be conflicting case law.

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

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Quick Hits

• Employers may have to deal with workflow or staffing issues, or even reputational harm, when an employee is arrested for an alleged crime while off duty.
• A workplace investigation may be needed in some cases to decide the proper disciplinary action.
• State laws, employment contracts, union contracts, and employee handbooks may play a role in determining any disciplinary action.
  

One of the first steps an employer can take after an employee is arrested is to assess whether the conduct violated professional ethics rules, the employee handbook, or the union contract. Many employers stipulate in their employee handbooks or union contracts that employees must act in an ethical, professional, and respectful manner toward coworkers, clients, and customers. An employee who lied about an arrest or failed to inform his or her supervisor about an arrest may have committed a violation of corporate policy.

In some cases, the handbook specifies that workers can be disciplined or fired for off-duty behavior that causes reputational harm to the company. But what does that really mean? Is an arrest for petty larceny treated in the same manner as an arrest for an incident of driving under the influence that resulted in property damage? Does the degree and type of crime change the analysis?

The advent of social media has dramatically increased the risk that an employee’s off-duty misbehavior could cause a public relations crisis for a company. In recent years, there have been some well-known examples of individuals who were fired after a video went viral on social media channels, showing an incident like road rage or assault. However, not all bad behavior rises to the level of a crime, and individuals accused of a crime are considered innocent until proven guilty. Therefore, employers may want to exercise caution when an employee has not been convicted of a crime yet.

After an arrest, an employee might miss work if he or she is in jail or court. A supervisor may have to shift work assignments or schedules in the meantime. The absence could be treated as personal time off or unpaid leave. Employers may want to ensure that they apply their absence and paid leave policies consistently to avoid discrimination and retaliation claims.

If an employee is arrested, a workplace investigation may help an employer uncover any misconduct at the workplace that wasn’t previously reported. Depending on the circumstances, the employer could decide to take no action, suspend the employee without pay, put the employee on administrative leave with pay, or discharge the employee.

When deciding whether to discipline or discharge an employee, the employer may consider whether the alleged crime is relevant to the job duties or type of job. For example, if a bus driver or truck driver is arrested for reckless driving or driving while intoxicated during off-duty hours, then the employer could argue that the alleged crime conflicted with business necessity. However, a computer programmer’s arrest for property damage might not be considered job-related or connected to business necessity.

Another factor to consider is the amount of public interaction the job requires. For example, jobs in sales, customer service, and teaching are public-facing, meaning those employees often serve as the face of the organization. Those cases might call for a different approach than employees in internal roles who don’t interact with the public.

State Laws Vary

All states, except for Montana, have at-will employment, meaning an employer can discharge a worker without cause. However, in some cases, a union contract or fixed-term contract may govern the conditions under which an employee can be discharged. If so, an employer might have to show just cause for terminating employment.

Some states have laws prohibiting employers from disciplining or discharging employees for lawful off-duty conduct, but this protection does not extend to criminal behaviors. Antidiscrimination laws prohibit employers from treating criminal history information differently for different employees based on their race, sex, national origin, and other protected characteristics. However, having a criminal record or an arrest generally is not considered a protected characteristic in most states. A company could be held liable if it falsely states that an employee was involved in a crime. State laws on defamation vary.

Next Steps

Employers may want to be careful about what they disclose in internal or external communications after an employee has been arrested. Employers may also wish to discourage gossip and restrict who is involved in meetings about the arrest in order to avoid allegations of defamation, particularly if there has not been a conviction yet.

Furthermore, employers may wish to apply their absence policies and standards of conduct consistently to prevent discrimination and retaliation lawsuits.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employment Law and Workplace Investigations and Organizational Assessments blogs as new information becomes available.

Sarah W. Walsh is of counsel 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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Government Shutdown Clock. Federal funding expires at 11:59 p.m. (EDT) on September 30, 2025. However, as the Buzz recently explained, because the U.S. Congress is scheduled to be out the week beginning September 22, 2025, lawmakers have only seven legislative days to reach a deal.

FTC Drops Defense of Noncompete Ban. Late last week, the Federal Trade Commission (FTC) filed motions with two separate appeals courts voluntarily dismissing its defense of the Biden-era regulation that banned noncompete agreements. This is not terribly surprising, as current FTC Chairman Andrew Ferguson dissented from the initial promulgation of the rule, writing, “We do not have the power to issue the Final Rule … the Federal Trade Commission Act does not authorize the Commission to make substantive rules regulating private conduct.”

NLRB Acting GC: Injunctions Still on the Table. On September 5, 2025, National Labor Relations Board (NLRB) Acting General Counsel (GC) William B. Cowen issued a memorandum, entitled, “Proceedings Under Section 10(j) of the Act.” The memo advises regional directors to “continue to assess whether interim injunctive relief is appropriate in each case” and emphasizes that certain unfair labor practices, “such as discharges during an organizing campaign … [and] withdrawals of recognition from incumbent unions,” warrant such relief. Acting GC Cowen previously rescinded multiple memos relating to 10(j) injunctions that were issued by his predecessor, Jennifer Abruzzo, but this memo dispels any notions that he is abandoning the 10(j) program. The memo further reminds regional directors that they now must adhere to the traditional four-factor test for preliminary injunctions announced by the Supreme Court of the United States in 2024.

State Department Limits Third Country National Processing. On September 6, 2025, the U.S. Department of State’s Bureau of Consular Affairs announced that nonimmigrant visa applicants “should schedule their visa interview appointments at the U.S. Embassy or Consulate in their country of nationality or residence.” With limited exceptions, this change limits the practice of third-country national processing, in which the applicant applies for a nonimmigrant visa at a location that is not the applicant’s country of citizenship or residency. The move creates more red tape for workers and employers operating in a global economy.

USCIS to Increase Law Enforcement Activities. On September 5, 2025, U.S. Citizenship and Immigration Services (USCIS) issued a final rule allowing “USCIS personnel to investigate and enforce civil and criminal violations of the immigration laws within the jurisdiction of USCIS.” Following Executive Order 14159, “Protecting the American People Against Invasion,” on May 2, 2025, Homeland Security Secretary Kristi Noem delegated “to the Director of USCIS the authority to conduct additional law enforcement activities to enforce civil and criminal violations of immigration laws within the jurisdiction of USCIS.” The final rule codifies certain provisions of this delegation. According to a press release accompanying the final rule, the “authorities provided to USCIS include making arrests, carrying firearms, executing search and arrest warrants, and other powers standard for federal law enforcement.” The press release also states that USCIS plans to recruit and train special agents to carry out these enforcement activities. The move is a continued example of USCIS’s shift from service provider to enforcement agency.

Bill Would Allow Striking Workers to Collect UI. Democrats in the U.S. Senate and the U.S. House of Representatives have introduced the Empowering Striking Workers Act, which would allow striking workers to collect unemployment insurance (UI). The bill would amend federal law to create an exception to a foundational requirement of the federal/state unemployment insurance program that a UI claimant “must be able to work, available to work, and actively seeking work.” Allowing striking workers to receive UI payments would obviously have an impact on the “economic weapons” that both management and labor unions may wield during labor disputes. New York, New Jersey, and—effective in 2026—Oregon and Washington allow striking workers to receive UI benefits.

A Man, a Plan, a Canal. On September 7, 1977, President Jimmy Carter and Panamanian Chief of Government Omar Torrijos signed two treaties—referred to as the “Torrijos–Carter Treaties”—relating to control over the Panama Canal. The first, known as the “Neutrality Treaty,” ensures that the United States permanently retains the right to defend the canal from any threats that might disrupt the free flow of neutral ships through it. The second, “The Panama Canal Treaty,” turned over control of the canal to Panama, effective December 31, 1999. The treaties superseded the Hay–Bunau–Varilla Treaty, which was signed in 1903 during President Theodore Roosevelt’s administration and granted the United States permanent rights over the Panama Canal Zone. The Torrijos–Carter Treaties were ratified by the U.S. Senate by identical votes of 68 to 32 in March and April of 1978. Many Republicans were unhappy with the treaties and viewed the action as unnecessarily giving up a strategic asset of the United States. A prominent critic was Senator Strom Thurmond (R-SC), who stated, “The canal is ours, and we bought and we paid for it and we should keep it.”

Quick Hits

• New state laws in Alaska, California, Connecticut, Delaware, and Washington require employers to give employees time off after being the target of a violent crime.
• The safe leave laws apply to victims of violent crimes, such as domestic violence, rape, and sexual assault.
• Employees typically can use safe leave to obtain medical care, seek psychological counseling, access social services, procure legal services, participate in legal proceedings, or secure safe housing.

Alaska Law

Alaska’s sick and safe leave law provides paid time off for victims of domestic violence, sexual assault, or stalking. Employers with fifteen or more employees must provide fifty-six hours per year of paid leave, and employers with fewer than fifteen employees must provide forty hours per year of paid leave. The law took effect on July 1, 2025.

If the time off amounts to more than three consecutive workdays, the employer may require the employee to submit documentation, such as a police report or a court document indicating relevant legal action.

California Law

California’s sick and safe leave law prohibits employers from discriminating or retaliating against employees for taking time off to appear in judicial proceedings or obtain relief after being a target of a “qualifying act of violence,” including domestic violence, sexual assault, stalking, or bodily injury from a gun or other dangerous weapon. Qualifying employees can take up to forty hours of paid safe leave per year.

The law took effect on January 1, 2025. It applies to employers with twenty-five or more employees.

Connecticut Law

In Connecticut, employees can take up to twelve days of paid safe leave after experiencing domestic violence, sexual assault, or stalking. To be eligible, workers must have earned at least $2,325 from a covered employer in the highest-earning quarter of the first four of the five most recently completed quarters.

Connecticut’s law took effect on January 1, 2025, for employers with twenty-five or more employees. It will take effect on January 1, 2026, for employers with eleven or more employees. Likewise, it will take effect on January 1, 2027, for employers with one or more employees in Connecticut.

Safe leave could be paid for eligible employees through the state family and medical leave program, or it could be unpaid under the federal Family and Medical Leave Act (FMLA). Safe leave also is provided under the state’s Family Violence Leave Act, which applies to employers with three or more employees and provides up to twelve days per year.

Delaware Law

Under Delaware’s Paid Family and Medical Leave Program, workers can take up to twelve weeks of safe leave. To qualify, an individual must have worked for a Delaware employer for at least 1,250 hours during the previous year.

The state law on safe leave covers employers with ten or more employees. The program began taking contributions through employer payroll deductions on January 1, 2025, and employees can begin receiving benefits on January 1, 2026.

Washington Law

Washington State’s Domestic Violence Leave Act prohibits employers from discriminating or retaliating against employees for taking time off after experiencing domestic violence, sexual assault, stalking, or a hate crime. The safe leave can include reasonable amounts of unpaid leave. The law will take effect on January 1, 2026. It applies to all employers, regardless of size.

If the safe leave extends for more than three consecutive workdays, the employer can require the worker to submit documentation confirming the need for safe leave.

Next Steps

Depending on the medical situation, some victims of violent crime could qualify for unpaid leave under the FMLA. In some cases, employees may be permitted to use safe leave in conjunction with the employer’s paid time off benefits or FMLA leave. Depending on the state, they also might qualify for safe leave to help a family member who has been the victim of a violent crime.

Employers may wish to review their time off policies and practices to remain in compliance with applicable state and federal leave laws. They may wish to train supervisors to understand any changes to state laws regarding safe leave. Employers can choose to provide more time off than state or federal laws require.

Ogletree Deakins will continue to monitor developments and will provide updates on the Alaska, California, Connecticut, Delaware, Leaves of Absence, and Washington blogs as new information becomes available.

Adam T. Pankratz is a shareholder in the Seattle office of Ogletree Deakins.

John G. Stretton is a shareholder in the Stamford office of Ogletree Deakins.

Charles L. Thompson, IV, is a shareholder in the San Francisco office of Ogletree Deakins.  

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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Quick Hits

• The U.S. Senate FY 2026 proposal for OSHA would maintain the agency’s fiscal year (FY) 2025 funding and staffing, supporting robust enforcement, training, and state partnerships.
• The U.S. House of Representatives’ and Trump administration’s proposals would reduce OSHA’s budget by nearly $50 million, cut 223 full-time equivalent (FTE) positions, and eliminate key training grants.
• The House and administration emphasize deregulation and “efficiency,” resulting in diminished enforcement and outreach activities.

The Senate proposal, included in Senate Bill 2587, would maintain FY 2025 funding at $632.3 million and 1,810 FTEs. It would fully fund state plan grants at $120 million and continue the Susan Harwood Training Grant Program ($12.8 million). The Senate proposal would support ongoing enforcement, compliance assistance, and training programs, and emphasize robust enforcement and outreach, with no reduction in planned inspections or enforcement initiatives.

The House proposal would reduce OSHA funding to $582.4 million and headcount to 1,587 FTEs, cut state plan grants by $4.8 million, and eliminate the Susan Harwood Training Grant Program. In addition, the House proposal would reduce funding for compliance assistance and whistleblower programs. The focus of the House proposal is deregulation and reducing regulatory burdens, which is projected to result in a lower number of planned federal inspections (targeted at 24,929, down from previous years).

The administration’s request mirrors the House proposal in funding and staffing reductions. It justifies elimination of Harwood grants as “wasteful and unnecessary,” citing alternative compliance assistance tools. The administration states that it intends to realign the agency’s workforce to meet current and future mission activities. The administration’s proposal states that the agency will maintain core enforcement and outreach functions, but at reduced levels due to lower staffing.

The Senate proposal would preserve OSHA’s current enforcement and outreach capacity, supporting state partnerships and training for vulnerable worker populations. In contrast, the House and administration proposals would result in fewer inspections, reduced technical support, and diminished training and outreach, particularly for hard-to-reach and at-risk workers. Corresponding cuts to state plan grants would likely reduce state-level enforcement activities.

The Senate’s FY 2026 OSHA budget proposal supports continuity in enforcement, training, and state partnerships, maintaining OSHA’s current capacity and mission. In contrast, the House and administration proposals prioritize cost-cutting and deregulation, significantly reducing funding, staffing, and programmatic support. These reductions would likely limit OSHA’s enforcement activities, decrease training and outreach, and weaken worker protections across the country.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and provide updates on the Workplace Safety and Health blog as the FY 2026 OSHA budget process unfolds.

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

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Quick Hits

• The annual limit for the EB-1 immigrant visa category has been reached for FY 2025, which ends on September 30, 2025.
• No further immigrant visas or permanent resident cards (commonly referred to as “green cards”) will be issued for the EB-1 category until the federal government’s new fiscal year begins on October 1, 2025.

Section 201 of the Immigration and Nationality Act (INA) governs the availability of immigrant visas for employment-based preference immigrants. Overall, there are 150,000 immigrant visas available across all categories for FY 2025. The EB-1 category is statutorily mandated to receive 28.6 percent of the annual limit. Once the numerical limit has been met, the category becomes unavailable until the next fiscal year (i.e., FY 2026, which begins on October 1, 2025)—resulting in no further permanent resident cards being issued for that category in FY 2025.

Next Steps

Despite the annual limit having been reached, eligible applicants may continue to file new EB-1 adjustment of status applications with U.S. Citizenship and Immigration Services (USCIS) if their priority dates are current under the Final Action Date Chart of the State Department’s September 2025 Visa Bulletin. These applications will be held for adjudication beginning on October 1, 2025. Similarly, the State Department announced last week that the annual limit had been reached for EB-2 employment-based immigrant visas.

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

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