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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Quick Hits

• The attorneys general of California, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Vermont, and Washington issued joint guidance explaining why the disparate impact theory of liability remains legal and enforceable under various laws. The guidance rejects the federal government’s characterization of disparate impact theory and enforcement as “illegal.”
• Even though the federal government has effectively terminated disparate impact enforcement, the need to monitor and evaluate workforce decisions for both intentional discrimination and disparate impact remain.
• The federal government and these fourteen states will scrutinize the same employment decisions, and the data behind them, under different theories.
• The states’ guidance includes a sector-by-sector roadmap of proactive measures covering employment, as well as housing, lending, and other sectors that signal what these attorneys general will look for in enforcement actions.

What the States’ Guidance Says

The guidance—issued by the AGs of California, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Vermont, and Washington—does not claim to be and is not new authority. Rather, the core legal argument underlying disparate impact theory is already familiar. Title VII of the Civil Rights Act of 1964 recognizes two forms of unlawful discrimination: intentional discrimination and disparate impact. The disparate impact theory of liability traces to Griggs v. Duke Power Co., where the Supreme Court of the United States held that facially neutral employment practices that exclude a protected group are unlawful if the employer cannot show they are job-related. That framework is statutory. It has not been repealed.

While the guidance acknowledges that some more recent Supreme Court decisions, including Alexander v. Sandoval, have narrowed who can enforce disparate impact protections and in what forum, the states argue those decisions “do not disturb the legality of disparate impact liability itself.”

The Federal Government’s Position

The federal government’s position rests on its own authorities. Executive Order (EO) 14281, “Restoring Equality of Opportunity and Meritocracy,” directs federal agencies to stop enforcing disparate impact liability theories in civil rights enforcement and repeal disparate impact rules and regulations where possible. The U.S. Departments of Justice (DOJ), Interior, Transportation, Agriculture, and Labor all rescinded the disparate impact provisions of their Title VI of the Civil Rights Act of 1964 regulations. These rules governed, among other things, how federal grant recipients, including many employers, addressed facially neutral practices with discriminatory effects. Each agency relied on the same legal basis: Alexander v. Sandoval, the Supreme Court’s decisions in Loper Bright Enterprises v. Raimondo and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, and EO 14281.

The DOJ’s Office of Legal Counsel (OLC) went even further. On June 9, 2026, the OLC issued a memorandum opinion concluding that the EEOC’s disparate impact guidelines are inconsistent with Title VII and constitutionally suspect. The OLC’s argument: the guidelines impose liability based on effects alone without regard to employer intent and pressure employers toward race-based decision-making. The opinion is an executive branch legal position, not a statute or judicial decision, and it does not change the text of Title VII. However, the constitutional arguments will be tested in court.

The states’ guidance rejects this framing. The states argue in the guidance that the president cannot rewrite statutes the U.S. Congress enacted or use executive orders to override protections in the U.S. Constitution or state law. The states further argue the federal government has created confusion about what the law requires. The federal government says it is restoring the original meaning of civil rights law. Both positions are in play.

Employer Takeaways

The states’ guidance does not impose new legal obligations on employers. However, the guidance indicates that those fourteen states are formally committed to continuing to enforce disparate impact protections regardless of pullback by the federal government. That has practical consequences on three fronts.

Employment decisions, and the data behind them, face scrutiny from both directions.

The federal agencies that rescinded their regulations under Title VI of the Civil Rights Act of 1964 kept data-retention expectations in place and stated the data can still prove intentional discrimination. The guidance confirms that these fourteen states will evaluate the same decisions and data for disparate impact. The federal government looks at whether the decision reflects intent. These states look at whether the decision produces unjustified effects. Even though the federal government is moving away from disparate impact enforcement, the obligation to monitor and evaluate workforce decisions under both theories remains. Employers may wish to structure that analysis under attorney-client privilege from the outset, so legal risk can be assessed under attorney-client privilege.

State enforcement is already underway.

The guidance cites recent actions against algorithmic bias in lending and tenant screening, housing ordinances that disproportionately affect domestic violence survivors, and language access barriers. Employers that use artificial intelligence (AI) or algorithmic tools in hiring, screening, or lending, take note: the guidance points to recent court decisions allowing disparate impact claims against algorithmic screening and hiring tools to proceed, and to state AG settlements targeting AI-related practices. The guidance also includes a sector-by-sector roadmap covering employment, housing, lending, language access, disaster preparedness, siting, and education. For employers, the guidance highlights their potential need to standardize selection criteria around job-relevant qualifications, provide equal access to professional development and mentorship, and maintain clear protocols for reporting discrimination.

Federal contractors face the sharpest version of this problem, with enforceable obligations running in both directions.

On the federal side, EO 14173 requires contractors to certify compliance with federal anti-discrimination laws, with False Claims Act (FCA) exposure for false certifications. EO 14398 and Federal Acquisition Regulation (FAR) 52.222-90 go further, prohibiting “racially discriminatory DEI activities” as a contract term in solicitations and contracts. DOJ has announced three multimillion-dollar FCA settlements under this framework and has encouraged swift action on qui tam complaints.

On the state side, the guidance tells federal contractors operating in the signatory states that proactive measures to identify and prevent disparate impact are lawful, expected, and enforceable. Private plaintiffs retain an independent right of action under Title VII regardless of the federal enforcement posture. The key terms “racially discriminatory DEI activities” and “illegal DEI” remain vaguely defined, and courts have said so.

A federal investigation asks whether practices constitute intentional discrimination or prohibited DEI activity. A state investigation asks whether those same practices produce unjustified disparate impacts. The same facts can trigger both at the same time, and the allegations will look nothing alike. Contractors may wish to map the risks from each direction, build a compliance approach that accounts for both, and do the work under privilege.

Next Steps

Federal enforcement, state enforcement, and private litigation will each evaluate the same employer practices differently. Employers may wish to consider, under privilege:

• Establishing a unified compliance position that addresses federal, state, and private plaintiff exposure simultaneously, including how workforce data is collected, analyzed, stored, and protected from discovery.
• Confirming that hiring, promotion, and termination practices are tied to job-related requirements, merit-based, documented, and free of equal employment opportunity violations.
• Auditing AI and algorithmic tools used in employment decisions for potential disparate impact, particularly in the signatory states where enforcement and litigation targeting these tools are already underway.
• For federal contractors, mapping EO 14173, FAR 52.222-90, and SAM.gov obligations against the signatory states’ enforcement expectations, with attention to DOJ’s False Claims Act posture.
• Monitoring state enforcement developments, because the federal state divergence is widening and additional states may follow.

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

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

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Quick Hits

• The Allegheny County Board of Health is reviewing amendments to a proposed paid parental leave ordinance issued in May 2026 that would shorten the length of paid leave from eighteen to twelve weeks and revise employer eligibility from all employers to those with fifteen or more employees.
• The Board will vote on whether to approve the paid parental leave policy as amended on September 28, 2026.

In May 2026, the Allegheny County Board of Health proposed amendments that would add a mandatory paid parental leave requirement to the Allegheny County Health Department’s rules and regulations for private employers. The original proposal included the mandate that employers of all sizes in Allegheny County (the county in which the city of Pittsburgh sits) provide eighteen weeks of paid leave to eligible employees. After the submission and review of more than 1,500 comments during the comment period, the Board has now introduced a revised version of the proposal which is intended to appease some of the business community’s concerns. The proposal made the following changes:

• Leave amount lowered to twelve weeks from the originally proposed eighteen weeks
• The maximum weekly paid parental benefit is set to $4,200 for full-time employees, and weekly average salary over the last six months for part-time employees
• Covered employers are now defined as employers of fifteen or more employees (previously all employers)
• Employee eligibility increased to at least 180 continuous days worked for full-time employees, and part-time employees must have been employed for 180 days and have worked at least 625 hours during that period
• Addition of stillbirth as an event triggering eligibility
• Effective date changed to 180 days after the passage of the proposal or at the beginning of the employer’s next budget cycle

Further, language was added to clarify that domestic partners in committed relationships taking care of children would also qualify for leave, and that permanent placements of children would also trigger qualification. During the Board’s meeting it was also clarified that employers would be allowed to require leave under the federal Family and Medical Leave Act (FMLA) to run concurrently with the county paid leave if employees are otherwise eligible for FMLA.

Additionally, if passed, the amount of paid sick leave under the Allegheny County Paid Sick Leave Act would increase from an accrual of one hour for every thirty-five hours worked up to forty hours per year to one hour for every thirty hours worked up to seventy-two hours a year.

Key Takeaways

While the formal public comment period for the Board of Health to take recommendations into consideration is over and the comment response document will not be updated, interested parties can still generally contact the Board of Health to submit comments. If the Board of Health votes in favor of the ordinance on September 28, the amendments will go to the Allegheny County Council for a vote, then to the county executive for signature if approved by the Allegheny  County Council.

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

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Quick Hits

• An employer may request that the employee disclose which job offers the employee received from Germany’s Federal Employment Agency (Bundesagentur für Arbeit) or Jobcenter.
• The employer does not have an independently enforceable right to information about applications and their outcomes.
• The right to information under Section 242 of the German Civil Code (Bürgerliches Gesetzbuch (BGB)) extends only as far as the employer needs information to trigger the employee’s secondary burden of producing evidence (sekundäre Darlegungslast) in default-of-acceptance remuneration litigation.

The Case—Dispute Over Default-of-Acceptance Remuneration After a Termination

The employee was discharged. The employment termination proved to be invalid. The employee then claimed default-of-acceptance remuneration from the employer for the period of nonemployment. The employer refused payment and argued under Section 11 no. 2 of the German Protection Against Dismissal Act (Kündigungsschutzgesetz (KSchG)) that the employee had maliciously failed to obtain alternative earnings in the meantime.

Because employers have the primary burden of producing evidence and the burden of proof (Darlegungs- und Beweislast), the employer brought a conditional staged counterclaim (bedingte Stufenwiderklage). The employer requested extensive information. The employee was to state which job offers the employee had received from the Federal Employment Agency or Jobcenter, including the activity, working hours, location, and remuneration. The employee was also to disclose whether the employee had applied for those offers, the outcome of those applications, and what application efforts the employee had undertaken. In addition, the employer requested the production of all application materials.

In its decision of September 25, 2024 (Ref. No. 18 SLa 467/24), the Hessian Regional Labor Court (Landesarbeitsgericht (LAG) Hessen) granted these requests only to a limited extent. The employer appealed to the BAG.

The Decision—Information About Job Placement Proposals, but Not Application Details

The Fifth Senate of the BAG vacated the partial judgment for procedural reasons and remanded the case to the appellate court. The partial judgment should not have been issued because the counterclaim was subject to an inadmissible condition. On the merits, however, the BAG provided the Hessian LAG with clear guidance for the further proceedings.

Accordingly, the employer’s right to information based on Section 242 BGB extends only to the information the employer needs in order to trigger the employee’s secondary burden of producing evidence. The employer generally bears the burden of pleading and proof for the defense of maliciously failing to earn interim income. If the employer seeks to rely on job placement proposals from the state employment placement service, the employer generally does not know whether such proposals were made at all or what they contained. The employer therefore has a right to information from the employee regarding any job placement proposals and their content, which may be enforceable as an independent claim.

By contrast, there is no further right to information as to whether, how, and with what result the employee applied for those proposals. The employee must address these points only as part of the employee’s secondary burden of producing evidence. Likewise, an employee registered as unemployed does not owe information about the employee’s own efforts to find other employment.

The employer does not need this information in order to raise the defense under Section 11 no. 2 KSchG.

Key Takeaways—Limits on Information Requests in Default-of-Acceptance Cases

So far, only the press release on the judgment is available. Further details will therefore have to await publication of the full judgment.

It is already clear, however, that the BAG is confirming its existing line of case law. The decision is therefore likely to have particular relevance for litigation involving default-of-acceptance pay and malicious failure to obtain alternative earnings under Section 11 no. 2 KSchG.

For employers seeking to rely on this defense, the decision points to the following practical consequences.

• Information requests are to be limited to the essentials. This may include, for example, disclosure of all job placement proposals, including information on the activity, working hours, location, and remuneration. Requests relating to the outcomes of application efforts, or even to application materials, will be rejected by the labor courts.
• Because employers have the primary burden of producing evidence and the burden of proof they may want to conduct their own job search in parallel with the information request and document specific job offers. These job offers may also be sent to the employee in a verifiable manner.
• Only once specific employment opportunities have been identified must the employee address circumstances within the employee’s own sphere as part of the secondary burden of producing evidence. This includes, in particular, an explanation of how the employee responded to specific job placement proposals or other identified employment opportunities.

Dr. Merle Steinhuber is an associate in Ogletree Deakins’ Berlin office.

Maximilian Gössling, a trainee lawyer in Ogletree Deakins’ Berlin office, contributed to this article.

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

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Quick Hits

• In Joyner v. Frontier Airlines, the Tenth Circuit reversed a district court’s ruling that customer service agents at a Denver airport were transportation workers exempt from federal arbitration law.
• The Tenth Circuit found the lower court had improperly relied on the work the named plaintiffs had actually performed, rather than what a typical class member did.
• The case hinged on whether the employees regularly handled passengers’ bags and thus took part in interstate commerce.

Under the Federal Arbitration Act (FAA), mandatory arbitration agreements in employment contracts are enforceable, but the statute exempts from its coverage contracts of transportation workers involved in moving goods across state or national borders.

In 2022, the Supreme Court of the United States ruled that airline cargo loaders were transportation workers and thus exempt from the FAA because they loaded and unloaded baggage that crossed state lines. On May 28, 2026, the Supreme Court held that workers who locally deliver goods that originate from other states may qualify for the FAA exemption, even if they do not personally cross state lines or interact with vehicles that do.

Background

Menzies Aviation provides ground, fuel, and air cargo support services, including ticketing, check-in, and boarding, for Frontier Airlines at Denver International Airport. In May 2024, a group of ticketing and gate agents sued Menzies and Frontier under Colorado’s wage-and-hour laws, alleging that the companies improperly deducted time for unpaid lunch breaks the employees never received, forced employees to work through mandatory rest breaks, failed to pay overtime wages, and withheld earned sales commissions.

The companies moved to compel arbitration, since all the plaintiffs had signed arbitration agreements. The employees argued they were transportation workers engaged in interstate commerce and thus exempt from the FAA because they sometimes handled passengers’ luggage. However, the companies argued that the plaintiffs were not engaged in interstate commerce because they could do their jobs without directly handling baggage.

On May 27, 2025, the U.S. District Court for the District of Colorado denied the motion to compel arbitration, finding the employees had furnished credible evidence that they routinely handled baggage. It did not take into account testimony from an employee who trained customer service agents and testified that they did not regularly lift luggage. The companies appealed.

The Tenth Circuit’s Ruling

The U.S. Court of Appeals for the Tenth Circuit explained that, in cases like this one, courts must first define the relevant class of workers in a class action, then determine whether that class is engaged in interstate commerce. It concluded the lower court was wrong to classify the plaintiffs as transportation workers by focusing exclusively on the work the three named plaintiffs performed, rather than on what the entire class typically did. Instead, courts considering class actions “must focus on the work performed by a typical member of the class, not on the work performed by any particular employee,” the Tenth Circuit noted.

The court concluded it could not address the other arguments in the appeal. “A conclusion that the district court erred in defining the working attributes of the relevant class renders moot all the district court’s subsequent findings and conclusions,” the court stated.

The U.S. Court of Appeals for the Tenth Circuit’s jurisdiction encompasses Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

Key Takeaways

The determination of an FAA exemption is very fact-specific and dependent on job duties related to interstate commerce. This case turned on whether typical class members routinely lifted luggage, not on what the individual plaintiffs did.

When attempting to compel arbitration in class actions, employers in the Tenth Circuit may wish to consider what the class of employees typically does, rather than what a specific employee does in the course of a workday. Individual variance from the norm can affect a court’s analysis.

Ogletree Deakins’ Arbitration and Alternative Dispute Resolution Practice Group will continue to monitor developments and will provide updates on the Arbitration and Alternative Dispute Resolution, Class Action, Colorado, Trucking and Logistics, and Wage and Hour blogs as additional information becomes available.

Eric M. Fox is co-chair of Ogletree Deakins’ Arbitration and Alternative Dispute Resolution Practice Group and a shareholder in Ogletree Deakins’ San Diego office.

Christopher C. Murray is co-chair of Ogletree Deakins’ Arbitration and Alternative Dispute Resolution Practice Group and a shareholder in Ogletree Deakins’ Indianapolis 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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