Quick Hits

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

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

Background

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

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

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

What Changed—and What Did Not

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

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

How the Public Comments Shaped the Change

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

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

Why It Matters

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

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

Next Steps

Employers may want to consider the following questions:

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

Developments to watch:

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

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

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

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Quick Hits

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

Legal Framework

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

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

Background

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

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

The Court of Appeals’ Analysis

The Statutory Damages Question

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

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

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

The Dissent

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

Key Takeaways for Employers

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

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

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Quick Hits

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

Legislative Action and Case Law

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

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

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

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

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

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

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

Disability Accommodations

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

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

Health Insurance Coverage

Treatments for menopause, such as hormonal medications and antidepressants, are often covered in employer-sponsored health plans and pharmacy benefits. Some states already mandate health insurance carriers to cover medically necessary treatment for perimenopause, menopause, and related symptoms and others have introduced similar legislation.

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

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

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

Leslie E. Wallis is a shareholder in Ogletree Deakins’ Los Angeles office.

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

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Quick Hits

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

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

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

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

Key provisions of the new law include:

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

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

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

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

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

Key Takeaways

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

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

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Quick Hits

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

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

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

Longer Response Period and Coverage of Current Employees

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

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

Expanded Fair Chance Employment Process

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

The rules direct consideration of the following factors:

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

Clarified Per Se Violations

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

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

Broader Definitions of Protected ‘Criminal History’

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

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

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

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

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

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

Clarified Exemptions

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

Changing Federal Regulatory Landscape

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

Next Steps

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

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

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

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

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Quick Hits

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

The Dual Jobs Regulation

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

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

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

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

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

Where We Are Now

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

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

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

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Quick Hits

• In the event of a discriminatory rejection, employers in Germany are, in principle, liable for lost earnings under Section 15 (1) AGG.
• The claim ends once the affected person has become established in other employment.
• The chain of causation is broken once the person has taken up suitable new employment that has become established.
• Proportionality and the general risks of life limit liability.

The Case—Age Discrimination in an Application for a Trainee Program

An applicant was not admitted to a trainee program because, contrary to the employer’s requirement, he had obtained his university degree more than one year earlier. In 2018, the Hesse Regional Labor Court (Landesarbeitsgericht (LAG)) had already determined that the employer was obliged to compensate for all future material damage resulting from the failure to hire him.

The claimant subsequently demanded approximately EUR 236,000 in lost earnings for a period of several years—the difference between the hypothetical salary had he been hired and his actual income. He took the view that the claim continued without time limit until his retirement. However, he had previously taken up a position commensurate with his qualifications with a public-sector employer and had worked there for several years.

The BAG’s Decision—Established New Employment Breaks the Chain of Causation

The BAG upheld the dismissal of the claim (Ref. No. 8 AZR 153/25).

An employer that violates the prohibition of discrimination is, in principle, obliged to compensate for the material damage—and this claim for compensation is, as to its basis, not limited in scope from the outset. An applicant rejected on discriminatory grounds can therefore, in principle, claim lost remuneration.

The decisive point, however, was the following: The chain of causation between the discriminatory failure to hire and the lost earnings ceases to exist as soon as the affected person has found new, suitable employment and this employment has become established. From that point on, further career development is no longer attributable to the original discrimination, but to the general risks of life. Consequently, the lost earnings claimed by the claimant are not recoverable. The court emphasized that, in line with European Union law, the obligation to pay damages under the AGG is intended to ensure effective compensation, but must at the same time observe the principle of proportionality.

And what if the applicant does not find a new position? The BAG did not have to decide on this scenario. However, there are good arguments against employers being liable until retirement in such a case:

• No right to be hired: Under Section 15 (6) AGG, an applicant who has been discriminated against cannot demand to be hired. Lost earnings until retirement would, in economic terms, amount to precisely such a hiring. It would even protect the applicant better than an employee who was actually hired, whose employment relationship could, for example, be terminated during the probationary period.
• Compensation, not profit: Damages are intended to place the applicant in the position he would have been in had he not been discriminated against, but not in a better position. Anyone who receives compensation for years without working and without bearing the risks of a real employment relationship would be better off.
• Duty to mitigate damages: Unemployed persons who are able to work must make serious efforts to find employment. Failure to do so may reduce or limit the claim.

In cases such as this one, employers may want to request information about the income actually earned and about the claimant’s own job application efforts. In the case decided, the employer had offered the applicant an entry-level position after the rejection and sent him job advertisements in order to demonstrate that reasonable alternatives existed, and thus to limit the lost earnings through the duty to mitigate damages (Schadensminderungspflicht).

Key Takeaways

The decision sets an important limit on the indefinite continuing effect of a damages claim under the AGG. For employers, this means: Even if a court has already issued a final and binding ruling (rechtskräftig) establishing the obligation to compensate for future damage, the claim may cease to exist as to its basis if the affected person has become professionally established elsewhere. In practice, employers facing claims for lost earnings may want to therefore always examine whether the claimant has in the meantime taken up another position commensurate with his or her qualifications. If this is not the case, it may be worthwhile to look at the claimant’s efforts to find a new position: There is much to suggest that a claimant who rejects reasonable offers or does not seriously apply for jobs cannot simply demand permanent compensation for lost earnings on account of the original rejection.

Ogletree Deakins’ Berlin office, Cross-Border Practice Group, and Global Reorganizations Practice Group will continue to monitor developments and will provide updates on the Cross-Border, Germany, and Global Reorganizations blogs as additional information becomes available.

Anna Maria von Lieres und Wilkau is an associate in the Berlin office of Ogletree Deakins.

Zeynep Yildirim, a law clerk in the Berlin office of Ogletree Deakins, contributed to this article.

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SCOTUS Ends Legal Challenge Filed by Former NLRB Member Wilcox. The Supreme Court of the United States has denied the petition for a writ of certiorari filed by former National Labor Relations Board Member Gwynne Wilcox, ending her challenge to President Trump’s decision to remove her from the Board in late January 2025. This leaves in place a December 2025 decision by the U.S. Court of Appeals for the District of Columbia Circuit upholding Wilcox’s removal. It also confirms that the Supreme Court’s decision in Slaughter applies to the National Labor Relations Act’s “for-cause” removal protections (which require that members only be removed for “neglect of duty or malfeasance in office”). Future presidents will therefore be empowered to assert political control over the NLRB more quickly, though politics and the U.S. Senate will still have roles to play. Brian E. Hayes and Zachary V. Zagger have more.

EEOC Poised to Scrap Guidance on Disparate Impact. The U.S. Equal Employment Opportunity Commission (EEOC) is on the precipice of rescinding its 1978 Uniform Guidelines on Employee Selection Procedures. As forecast in the Commission’s regulatory agenda, made public in July 2026, a draft final rule rescinding the guidelines is currently under review by the Office of Information and Regulatory Affairs (OIRA). After OIRA completes its review, which usually takes several weeks, the EEOC will issue the rule to rescind the Guidelines. There was no notice-and-comment opportunity for this action.

The guidelines provide employers with a framework for demonstrating that a selection procedure with an adverse impact on certain groups is job-related and consistent with business necessity. EEOC’s pending rescission of the guidelines does not amend federal employment discrimination law, which still allows for a disparate impact theory of discrimination. However, the action is consistent with the Commission and the administration’s broader deemphasis of the theory. (The EEOC’s recent step towards rescinding its guidance on the use of criminal background checks is another example.) In June 2025, the U.S. Department of Justice’s (DOJ) Office of Legal Counsel issued an opinion letter positing that the Uniform Guidelines were both contrary to Title VII of the Civil Rights Act of 1964 and the U.S. Constitution. T. Scott Kelly and Nonnie L. Shivers have additional details.

DOL Scraps Opinion Letters that Contravened Current Law on Tipped Employees. On October 19, 2026, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued Field Assistance Bulletin No. 2026-1, which withdraws three old opinion letters relating to the tip credit and 80/20 guidance for dual jobs. In 2021, under President Biden, WHD finalized its “dual jobs” rule, which implemented a difficult-to-administer standard that requires employees to “receive the full minimum wage from their employer whenever non-tipped, directly supporting work exceeds 20 percent of their workweek or 30 continuous minutes.” That rule was vacated in 2024 by the Fifth Circuit Court of Appeals as being inconsistent with the Fair Labor Standards Act (FLSA). Because the three old opinion letters contained analysis that was rejected by the court in 2024, they “no longer reflect Division policy and, in some respects, do not accurately state the law” and were, therefore, withdrawn.

In the most recent Unified Agenda of Federal Regulatory and Deregulatory Actions, WHD has indicated it will issue a new proposal relating to tipped employees under the FLSA. That proposal was scheduled for release in August 2026, so it should be issued shortly.

GAO Report: OFCCP Should Resume Section 503 Compliance Obligations. An October 2026 report by the Government Accountability Office criticizes the Office of Federal Contract Compliance Programs’ efforts to enforce Section 503 of the Rehabilitation Act of 1973, which prohibits federal contractors from discriminating against individuals with disabilities in employment. Though President Trump revoked EO 11246 (which prohibited covered federal contractors from discriminating in employment on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin), the Office of Federal Contract Compliance Programs (OFCCP) within the DOL still retains authority to enforce 503, as well as the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA).

The report, requested by Senators Bernie Sanders (D-VT) and Kirsten Gillibrand (D-NY), finds that OFCCP has stopped collecting Section 503 Affirmative Action Plans through the Contractor Portal and has also stopped Section 503 compliance audits of select contractors. The report also states that resources on recruiting and retaining individuals with disabilities, as well as guidance on demonstrating compliance with Section 503, have been removed from OFCCP’s website. Accordingly, the report recommends that OFCCP should resume both “collecting certification of AAPs from contractors through its Contractor Portal or other mechanism” as well as “audits related to Section 503 compliance.” In response, DOL stated that it does not plan to resume AAP certification or compliance audits but will continue to investigate individual complaints.

Distill My Heart. This week, the Supreme Court took up a case that will determine the constitutionality of an 1868 law banning the distilling of spirits within homes. As the Buzz has discussed, distilled spirits have been subject to taxation and, therefore, controversy, since the nation’s founding. In 1868, Congress banned distilling spirits at home because this practice made it much easier for home distillers to conceal their alcohol production and avoid paying taxes on their hooch. Violators of the ban are subject to a $10,000 fine, imprisonment for up to five years, or both, for each offense. In this case, distilling enthusiasts challenged the law as violating the Constitution’s Commerce, Taxation, and Necessary and Proper clauses.

The Fifth Circuit Court of Appeals held the ban on in-home distilling violates the Constitution’s Necessary and Proper Clause because it doesn’t advance Congress’s constitutional power to collect taxes. To the contrary, the court maintained, the ban doesn’t facilitate the collection of taxes but instead serves as “an anti-revenue provision that prevents distilled spirits from coming into existence” and is simply “a pure prohibition of conduct that might otherwise have generated taxable products.” The court also reasoned that, under the federal government’s logic, home-based businesses and remote work could be criminalized as well, because both could potentially conceal taxable activity. The federal government subsequently appealed to the Supreme Court.

The Supreme Court is expected to hear oral arguments in the case in early 2027 and issue a decision later in the spring.

Quick Hits

• The November Visa Bulletin shows minimal movement under the Dates for Filing chart, with only the EB-3 “Other Workers” category advancing.
• The Visa Bulletin shows modest movement on the Final Action Dates chart for EB-2 and EB-3 for several chargeability areas. USCIS has confirmed that employment-based adjustment-of-status applicants may file in November using the Dates for Filing chart in the November Visa Bulletin.

Dates for Filing Control for November 2026 Filing Eligibility

The Dates for Filing chart shows no movement from October, except for “Other Workers” in the “All Chargeability” and “Mexico” categories. USCIS has confirmed applicants may use this chart for November employment-based adjustment filings.

That makes filing eligibility and final-approval timing two separate tracks this month: the Dates for Filing chart controls whether Form I-485 can be filed now (along with related Employment Authorization Document (EAD) and advance parole eligibility), while the Final Action Dates chart still controls final approval.

• EB-1: Unchanged
• EB-2: Unchanged
• EB-3: Unchanged
• EB-3 Other Workers: Mexico and China advance to July 1, 2022 (from June 1, 2022)
• EB-5 Unreserved: Unchanged

Source: U.S. Department of State, November 2026 Visa Bulletin

Notably, the EB-2 and EB-3 filing dates for All Chargeability Areas and Mexico (March 15, 2026, and August 1, 2024, respectively) remain well ahead of the corresponding final action dates, so many affected applicants can file in November even though final approval will have to wait. Employees whose priority dates are current under the Dates for Filing chart but not under the Final Action Dates chart may file Form I-485 and may be eligible for interim benefits (an EAD and advance parole) while their cases await final action.

Final Action Dates (Approval/Visa Issuance)

• EB-1: China advances to August 1, 2023 (from July 1, 2023). India is unchanged at February 1, 2023. Rest of World, Mexico, and the Philippines remain current.
• EB-2: Rest of World, Mexico, and the Philippines advance to April 1, 2025 (from January 1, 2025). India remains unchanged at November 1, 2013. China remains unchanged at October 1, 2021.
• EB-3: Rest of World and Mexico advance to June 15, 2024 (from May 15, 2024). China advances to January 22, 2022 (from January 8, 2022). India advances to January 22, 2014 (from January 1, 2014). The Philippines remains unchanged at August 15, 2023.
• EB-3 Other Workers: Rest of World and Mexico advance to June 1, 2022 (from January 1, 2022). India advances to January 22, 2014 (from January 1, 2014). China unchanged at October 1, 2019. The Philippines remains unchanged at January 1, 2022.
• EB-4/Religious Workers: Unchanged at December 15, 2022, across all countries. H.R. 6500 (signed September 2, 2026) extends the Religious Workers category through December 11, 2026.
• EB-5 Unreserved: China is unchanged at December 1, 2016. India is unchanged at December 1, 2023. Rest of World, Mexico, and the Philippines remain current.
• EB-5 Set Aside Categories: Remain current.

Source: U.S. Department of State, November 2026 Visa Bulletin

Because USCIS has authorized use of the Dates for Filing chart, this month’s final action advances primarily affect when pending cases can be approved, not whether new cases can be filed in November. Since USCIS reassesses chart selection monthly, this authorization is not guaranteed to carry into December.

Next Steps

With USCIS’s confirmation that the Dates for Filing chart governs November 2026 employment-based adjustment filings, the gap between the two charts may be relevant to employers and foreign national employees whose priority dates fall between the dates for filing cutoff and the final action date. Some pending applications may also move closer to approval as a result of this month’s final action advances in the EB-1 China, EB-2, and EB-3 categories. Since USCIS evaluates which chart to use monthly, it remains unclear whether the November authorization will extend into December 2026. Even with this month’s progress, applicants chargeable to China and India continue to face significant backlogs in the EB-1, EB-2, EB-3, and EB-5 categories, which may continue to affect long-term work-authorization planning.

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

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Quick Hits

• A claim under Section 12 (3) of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz (AGG)) for measures against a colleague requires that the colleague’s conduct constitutes discrimination based on a characteristic listed in Section 1 AGG.
• Assigning a long-tenured employee to share an office with trainees does not, without more, constitute age discrimination.
• Rudeness is not workplace bullying; conduct rises to that level only when it is systematic and objectively reprehensible.

The Case—Lunch, a Microwave, and a Lost Contact Lens

The plaintiff has worked as an administrative employee at a university of the defendant German state since 1982. She is now close to retirement. She accused a coworker of bullying and based her claim on four incidents:

• The colleague did not help her look for a contact lens. According to the plaintiff, the search took fifteen to thirty minutes.
• The colleague once spoke to her in a harsh tone and then slammed the door.
• The colleague did not acknowledge birthday wishes sent via a text messaging app.
• The shared lunch was moved to another office, along with the microwave.

The plaintiff demanded that the employer—a German state (Land)—terminate the colleague’s employment, or, alternatively, transfer or formally warn the colleague. She also claimed monetary compensation. She alleged age discrimination based on the employer’s suggestion that she move to an office shared with trainees, arguing that the young adults there would have no common conversational topics with her “as an older woman.” The employer offered mediation, which did not take place because the colleague declined.

The Decision—Uncollegial but Not Reprehensible

The Labor Court of Mannheim (Arbeitsgericht Mannheim (ArbG Mannheim)) dismissed the claim in its entirety (Ref. No. 5 Ca 139/25).

A claim under Section 12 (3) AGG failed because none of the characteristics listed in Section 1 AGG were implicated. The court found no indication that the colleague had treated the plaintiff less favorably because of her age or disability.

The court also rejected the claim for compensation under Section 15 (2) AGG. The court stated that it was “not apparent” why sharing an office with trainees should constitute age discrimination against a long-tenured employee. In any event, such a reassignment would be objectively justified because the employer has discretion in deciding how to respond to workplace conflicts.

The court found that workplace bullying (commonly referred to as “mobbing” in Germany) was not established either. Failing to help search for a contact lens or not responding to birthday wishes is, in the court’s view, “uncollegial, socially inattentive, and rude,” but not reprehensible and therefore not a breach of duty. The decisive factor is an objective assessment, not the subjective perception of the person affected. The court held that the employer had already fulfilled its duty of care by suggesting mediation and offering a reassignment.

Key Takeaway—Not Every Conflict Is Discrimination

The ArbG Mannheim’s ruling provides employers with an illustrative reminder that the AGG protects against unfair treatment based on age, but not against every act of rudeness. The decision also offers several insights for employers:

• Responding to conflicts. Employers may want to offer solutions early, such as mediation or separate workspaces. This may be helpful even if the conduct has not yet reached the level of bullying.
• Choosing a move based on objective reasons. Employers do not need to determine who is to blame for the conflict. A move based on objective reasons can usually be defended against claims of age discrimination.
• Documenting the steps taken. In this case, the court was convinced by the offer of mediation, the occupational integration management (betriebliches Eingliederungsmanagement (BEM)) meetings, and the offers to move. Together, these showed that the employer had fulfilled its duty of care.

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

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