SCOTUS: FTC Removal Protections Are Unconstitutional. On June 29, 2026, the Supreme Court of the United States ruled that the provision of federal law limiting the president’s ability to remove commissioners of the Federal Trade Commission (FTC) only for “inefficiency, neglect of duty, or malfeasance in office” violated the United States Constitution’s separation of powers. The ruling was the result of former FTC commissioner Rebecca Slaughter’s legal challenge to her removal from the Commission by President Donald Trump in March 2025. Because “[t]he FTC unquestionably exercises executive power, and must therefore be controlled by the Chief Executive,” Chief Justice John Roberts wrote, “It follows, then, that Slaughter served as the President’s subordinate at the FTC—and that the President was entitled to cut her tenure short.”

The decision will undoubtedly play a significant role in resolving ongoing legal challenges to the president’s ability to remove members from the National Labor Relations Board and the U.S. Equal Employment Opportunity Commission (EEOC). Ultimately, the Supreme Court’s Slaughter decision vests more power in the executive branch, with at least one result likely to be more dramatic policy swings with each new administration. Brian E. Hayes and Zachary V. Zagger have more on the decision.

SCOTUS Strikes Down Birthright Citizenship EO. On June 30, 2026, the Supreme Court of the United States struck down Executive Order (EO) 14160, “Protecting the Meaning and Value of American Citizenship.” The EO stated that children born of persons unlawfully or temporarily present in the United States were not subject to the jurisdiction of the United States, and therefore not entitled to U.S. citizenship under the Fourteenth Amendment and federal law. In other words, pursuant to the EO, a child born in the United States who did not have at least one parent who was a U.S. citizen or a lawful permanent resident would not qualify as a citizen by birth. The majority of the Court ruled that the executive contravened the Fourteenth Amendment, which focuses on the location of the individual’s birth and says nothing about the immigration status of the individual’s parents. (Section 1 of the Fourteenth Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”). The majority wrote, “Citizenship, then and now, was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.” Nicole Fink and Philip K. Sholts have the details.

President Trump Nominates Acting Labor Secretary to Officially Lead DOL. President Trump will nominate Deputy Secretary of Labor Keith Sonderling to take the reins as U.S. secretary of labor. Sonderling has served as acting labor secretary since April 2026, when Lori Chavez DeRemer, the immediate past labor secretary, resigned. Sonderling is well-versed in many of the employment issues facing employers today, having previously served as an acting wage and hour administrator at the U.S. Department of Labor (DOL) and as an EEOC commissioner.

EEOC Rescinds Affirmative Action Guidelines. The EEOC voted this week to rescind its interpretive guidelines titled “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964 as Amended.” The Commission, which forecasted this action last month, did not solicit public feedback on the matter. According to an EEOC press release, the guidelines “ran afoul of the text of Title VII and contradicted Supreme Court case law that has developed over the four decades since the Affirmative Action Guidelines were issued.” Of course, federal contractors remain obligated to prepare affirmative action plans as required by Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act. These federal statutes remain in effect, notwithstanding the EEOC’s rescission of its affirmative action guidelines or President Trump’s issuance of EO 14173 in January 2025.

America 250. In observance of the 250th anniversary of the United States’ founding, here are some fun facts to get you in the patriotic spirit:

• Independence Day is really July 2, 1776. This was the day the Continental Congress passed a resolution declaring the colonies’ independence from Great Britain. When the Congress subsequently felt the need to explain the vote to the public, the Declaration of Independence was drafted and adopted two days later, on July 4, 1776.
• The only two signatories to the Declaration of Independence who later became president of the United States—John Adams and Thomas Jefferson (respectively, the nation’s second and third presidents)—both died on the same day: July 4, 1826, the fiftieth anniversary of the adoption of the Declaration of Independence.
• Five years after Adams and Jefferson passed, James Monroe, who served as the fifth president of the United States from 1817 to 1825, died on July 4, 1831.
• Calvin Coolidge, who served as the United States’ thirtieth president from 1923 to 1929, was born on July 4, 1872—the only U.S. president to share a birthday with the United States.
• Six people signed both the Declaration of Independence and the United States Constitution: Benjamin Franklin, George Read (one of Delaware’s first U.S. senators), Roger Sherman (who later represented Connecticut for a term in the U.S. House of Representatives, followed by two years in the U.S. Senate), Robert Morris (the “Financier of the Revolution” and one of Pennsylvania’s first U.S. senators), George Clymer (an early abolitionist from Pennsylvania), and James Wilson (one of the first justices appointed to the Supreme Court by President George Washington). Thomas Jefferson and John Adams signed the Declaration of Independence, but did not sign the Constitution, as they were overseas serving as ministers to France and Great Britain, respectively.

Although Massachusetts became the first state to officially recognize the Fourth of July as a holiday in 1781, July 4 did not become a federal holiday until 1870. Even then, the Fourth remained an unpaid holiday for federal employees until 1938.

The Buzz will return to its regularly scheduled programming on Friday, July 10, 2026.

Quick Hits

• On June 5, 2026, the federal district court granted a preliminary injunction requested by twenty states and Washington, D.C., which are challenging the USDA’s conditions requiring funding recipients to certify compliance with the administration’s policies on antidiscrimination and not to use money in ways contrary to the federal government’s positions on “gender ideology,” women’s and girls’ sports, and immigration. The judge explained the decision in an opinion released on June 24, 2026.
• The court barred the USDA from enforcing the new conditions or taking adverse action against the states and Washington, D.C.
• The USDA’s funding conditions are part of a broader, governmentwide effort to embed anti-DEI compliance requirements into federal funding relationships.

Four Key Funding Conditions

The USDA’s antidiscrimination policy condition requires funding recipients to certify compliance with “all federal antidiscrimination laws, regulations, and policies,” including recent executive orders banning what the administration considers “illegal” DEI practices, specifically Executive Order 14168 and Executive Order 14173, and expressly warns that noncompliance may result in False Claims Act liability. The “gender ideology” condition prohibits the use of federal funds in ways that “promote gender ideology.” The sports condition prohibits directing funds toward programs that “deprive women and girls of fair athletic opportunities” or permit “male competitive participation in women’s sports.” The immigration condition prohibits directing funds toward programs that “allow illegal aliens to obtain taxpayer-funded benefits.”

Reasoning From the Court

In its June 24, 2026, memorandum explaining the preliminary injunction, the court found that the plaintiff states are likely to succeed on both their Spending Clause and the Administrative Procedure Act (APA) claims, and noted that the Spending Clause violations alone warranted the injunction.

On the Spending Clause, the court identified three independent grounds. First, the conditions are unconstitutionally vague. The court found that the policy condition’s requirement that recipients comply with all federal antidiscrimination “policies” fails to identify what those policies are or where they can be found, and that even the enumerated executive orders “state on their own terms that they apply only to the federal government.” The gender, sports, and immigration conditions fared no better, with the court finding the immigration condition alone “raises more questions than it answers,” including whether grantees must verify immigration status, which would conflict with federal law requiring school lunch eligibility regardless of immigration status.

Second, the conditions are not reasonably related to the federal interest in the programs they govern. When asked at oral argument how the sports condition relates to a program to eradicate invasive insects, the government argued that any prohibition on fund use would satisfy the relatedness test. The court rejected this, noting that if that argument were true, “any prohibition, no matter what the prohibition is, would be related,” which is incorrect as a matter of law. Third, the conditions are unduly coercive. The court found that the sheer scale of the threatened funding loss, $74 billion annually, crosses the constitutional line from persuasion to compulsion.

On the APA, the court found the conditions arbitrary and capricious on four independent grounds. The USDA offered no reasoned explanation connecting the conditions to the programs they govern, with the court finding that generic rationales, such as “putting America First” and “sound stewardship of taxpayer dollars” were “as circular as an Ouroboros: do as I say, because I said so.” The agency also failed to consider the conflict between the conditions and existing state and federal laws, including the Supreme Court of the United States’ holding in Bostock v. Clayton County, Georgia that firing an employee for being transgender violates federal law. The USDA failed to consider the states’ substantial reliance interests in funding they have depended upon for decades. The agency failed to consider any alternatives to an across-the-board imposition of the conditions on every program, regardless of its statutory purpose.

The court also noted that the USDA did not use notice and comment procedures before imposing the new conditions, as is typically required when an executive agency imposes a new rule. The USDA argued that its funding decisions are committed to agency discretion and not subject to APA review. The court rejected this, holding that the across-the-board imposition of the conditions, without the program-by-program balancing the agency discretion doctrine requires, is reviewable under the APA.

The conditions, while currently enjoined, apply to a variety of programs funded by the USDA, including the national school lunch and school breakfast programs, the Supplemental Nutrition Assistance Program (SNAP), and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). The USDA also funds programs for wildfire prevention, specialty crops, and agricultural research.

Next Steps

The new funding conditions will not be enforced while the case proceeds. The preliminary injunction does not extend to all USDA grant recipients and is not a final ruling on the merits of the case. The USDA could appeal the injunction ruling.

The court’s conclusion that the administration’s anti-DEI and immigration funding conditions are unconstitutionally vague and lack a reasoned basis confirms something that many employers have been navigating in practice. The administration’s policies have not drawn a clear line between lawful and unlawful DEI-related programs, hiring practices, and workforce policies, or between permissible and impermissible eligibility practices.

Employers and federal grantees may wish to consider the following steps:

• Know what you have. The injunction is temporary. Whether it holds, is reversed on appeal, or is resolved on the merits, grantees may wish to take this time to conduct a privileged audit of their DEI-related programs and employment practices.
• Map your conflicts. Employers operating across multiple jurisdictions may wish to identify where federal certification requirements conflict with state or local antidiscrimination obligations, particularly around gender identity, sexual orientation, and immigration status.
• Monitor parallel developments. The court’s analysis of what the administration’s anti-DEI and immigration funding conditions can and cannot require is likely to inform how similar conditions emerging from other federal agencies are evaluated. Employers and grantees may wish to assess those implications as agency-specific implementations continue to develop.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance, Government Contracting and Reporting, and Workforce Analytics and Compliance practice groups will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Government Contracting and Reporting, 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.

T. Scott Kelly is a shareholder in Ogletree Deakins’ Birmingham office, the co-chair of the firm’s Government Contracting and Reporting Practice Group, and the chair of the firm’s Workforce Analytics and Compliance Practice Group.

Nonnie L. Shivers is a shareholder in Ogletree Deakins’ Phoenix office and co-chair of the firm’s Diversity, Equity, and Inclusion Compliance Practice Group.

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

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Quick Hits

• The CAI found that Metro Inc.’s facial recognition pilot meets the necessity standard of the Act respecting the protection of personal information in the private sector (the Privacy Act).
• Although it called facial recognition more intrusive than traditional video surveillance and the biometric data “sensitive,” the CAI held that the biometric bank does not “otherwise” infringe privacy under Article 45 of the Act to establish a legal framework for information technology (LCCJTI).
• Necessity turns on a structured test: the objectives must be important, legitimate, and real, and the collection must be proportionate, rationally connected, minimized, and more beneficial than harmful.

Notably, the CAI reached that result after a demanding and often critical review of the technology’s privacy risks, concluding that the project’s benefits outweigh the intrusion, subject to a two-year reporting obligation and to its separate, still-contested February 18, 2025, decision on consent.

This 2026 decision is the second chapter of the same investigation. In its February 18, 2025, decision, the CAI held that Metro’s facial recognition amounts to identity verification requiring express consent under Article 44 LCCJTI, and prohibited the bank on that basis. That ruling, which we examined in our earlier article on Québec’s restrictive approach to biometric data, remains under appeal before the Court of Québec. The 2026 decision expressly leaves it untouched. The necessity “green light” is therefore conditional: the consent prohibition still stands unless and until it is overturned.

Metro proposed a pilot in up to ten grocery and pharmacy stores that would convert surveillance images of suspected repeat offenders into biometric templates, store them in a database, and flag matches in real time. The CAI was openly skeptical: it found the accuracy evidence thin, flagged real risks of false positives and demographic bias, and warned that relying on a police report rather than a conviction creates a “presumption of guilt.” Even so, it concluded that the collection is necessary and that the bank does not otherwise infringe privacy, allowing the project to continue subject to conditions.

Under Article 5 of the Québec Privacy Act, the organisation collecting personal information must prove the collection is necessary. The CAI works in two stages. First, it asks whether the objectives are important, legitimate, and real; the “real” element demands concrete, documented problems rather than general claims. To address this, Metro provided loss estimates (roughly C$30 million in external-theft losses in 2024) together with incident logs and rising security-agent costs. This information was redacted from the decision, but was part of the analysis. It satisfied the CAI that its anti-theft, anti-fraud, and safety objectives were genuinely grounded in each targeted store.

The CAI applied a notably high threshold for approval. Organisations may wish to note that the CAI expected Metro to clearly explain not only why the tool was necessary, but also to describe the functionality of the biometric scanning process in detail. The decision reveals that the CAI identified weaknesses in certain explanations provided regarding how the systems would operate in practice. The CAI observed that these intermediaries did not appear to be aware of the real efficacy of the system, making it difficult to obtain a clear picture of the technology’s reliability.

Organisations considering biometric tools may therefore wish to carefully vet vendors at an early stage, so that if a tool comes under regulatory scrutiny, the organisation is in a position to provide clear and accurate answers about how the technology functions. It would be prudent for organisations to avoid relying solely on vendor representations and instead seek to understand the tool’s mechanics sufficiently to explain them independently to a regulator.

Second, the collection must be proportionate. Applying the Court of Québec’s Société de transport de Laval test, the CAI weighs whether the collection is rationally connected to each objective, whether the intrusion is minimized, and whether the benefits clearly outweigh the harm to the people affected.

On minimization, the CAI credited Metro’s record and commitments: it had already deployed and exhausted less intrusive measures, agreed not to keep templates where no match occurs, limited the pilot to ten identified stores, and capped retention at eighteen months. The CAI stayed wary of pooling all biometric data in one central bank and recommended centralizing only where a regional link justifies it.

Weighing benefits against intrusion, the CAI gave deterrence limited weight and treated facial recognition as a complementary “tool,” not a stand-alone “solution.” On balance, it still found the project’s practical utility outweighs the harm, while reserving the right to revisit that conclusion.

Next Steps

The decision provides a cautiously encouraging signal for organisations in Québec that collect or process biometric data: such projects can survive CAI scrutiny, but only with rigorous, well-documented justification. Beyond biometrics, the decision offers broader lessons about the CAI’s approach to privacy enforcement under Québec’s privacy legislation (notably, the Act respecting the protection of personal information in the private sector, as amended by Law 25). Employers and other organisations may wish to consider the following takeaways:

Building an evidentiary record. The CAI required Metro to document internally why facial recognition was necessary for its specific objectives, and to demonstrate that alternative tools had been deployed and found insufficient. This approach is likely to extend to other high-impact data processing activities. Employers may want to maintain contemporaneous records explaining why particular data collection practices are necessary, what alternatives were considered, and why those alternatives did not meet the organisation’s legitimate purposes. General statistics or industrywide trends will not suffice; the CAI expects location-specific and purpose-specific justification.

Vetting vendors and understanding the technology. The CAI’s investigation revealed that certain vendors and intermediaries could not adequately explain how their systems functioned, which created difficulties in demonstrating reliability. One supplier stated that he “had no idea” how the system creates facial signatures because he merely resells the technology; another could not specify error rates because the algorithm belonged to a third party. Employers deploying any technology that processes personal information may wish to conduct thorough due diligence on providers at an early stage. Employers may want to avoid relying solely on vendor representations and instead ensure the organisation can independently explain the technology’s mechanics, accuracy, and limitations to a regulator if required.

Minimising by design. The CAI credited Metro for narrowing the pilot to ten identified stores, committing not to retain biometric templates where no match occurs, and capping retention at eighteen months. For any sensitive data processing, organisations may wish to limit geographic scope, avoid unnecessary centralisation of data across locations, set short retention periods, and implement deletion protocols tied to specific triggers (such as where there is no match, no conviction, or no ongoing purpose). The CAI recommended against centralising data from physically distant or unrelated establishments, noting that broader centralisation increases the invasiveness of any surveillance.

Confronting accuracy and bias proactively. The CAI remained “perplexed” by the weak evidence of system efficacy and noted that algorithmic bias and false positives are “inherent” risks of AI-based systems, including facial recognition. For any AI or automated decision-making tool, it would be prudent to gather credible evidence of reliability, implement controls for demographic bias, and require trained human review before any consequential action is taken. The CAI accepted Metro’s commitment to human oversight as a mitigating factor, suggesting that organisations deploying similar tools may wish to build human-in-the-loop safeguards into their processes.

Minding consent and transparency obligations. This necessity ruling does not resolve the separate Article 44 LCCJTI consent question, which remains under appeal. Biometric identity verification may still require express consent, and organisations may wish to monitor the appeal closely. More broadly, the CAI expects clear transparency: Metro was required to produce detailed signage explaining the facial recognition system to individuals entering the stores. Under Law 25, employers and organisations must be prepared to provide meaningful notice about their data practices and to respond to access requests, which may include disclosing the existence of profiling or automated decision-making.

Expecting ongoing oversight. The CAI retained jurisdiction and imposed semiannual reporting for two years, with the express right to revisit its conclusion if the systems do not demonstrate sufficient efficacy or if bias or false-positive issues emerge. Continuing regulatory engagement is likely, so organisations operating high-impact data systems may want to build internal reporting processes that can satisfy such requirements. This supervisory approach may signal a broader trend under Law 25, where the CAI retains active oversight of sensitive data processing activities rather than simply granting one-time approvals.

Considering the quasi-constitutional nature of privacy protection. The CAI’s decisions reflect Québec’s position that privacy protection has quasi-constitutional status, warranting broad and liberal interpretation of protective provisions.

Ogletree Deakins’ Montréal office, Cybersecurity and Privacy Practice Group, and Technology Practice Group will continue to monitor developments and provide updates on the Canada, Cross-Border, Cybersecurity and Privacy, Retail, and Technology blogs.

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Quick Hits

• Virginia Governor Spanberger vetoed SB 378/HB 1263 on May 14, 2026, blocking legislation that would have extended collective bargaining rights to approximately 500,000 public employees across the Commonwealth.
• The vetoed bill would have repealed Virginia’s collective bargaining ban, established a Public Employee Relations Board, required mandatory good-faith bargaining over wages, hours, and working conditions, and imposed binding arbitration upon impasse.
• Virginia’s existing framework, which allows individual localities to opt in to collective bargaining for certain municipal employees, remains in effect while the governor has stated she will continue working with the General Assembly on a revised approach.

The bill passed both chambers of the Virginia General Assembly, after which the governor proposed amendments. After the General Assembly rejected the governor’s proposed amendments, the governor bucked speculation that she would sign the bill and ultimately vetoed the measure, stating she supported public-sector collective bargaining, but believed additional amendments were needed.

Overview of SB 378/HB 1263

The now-rejected bill would have repealed Virginia’s collective bargaining ban and significantly expanded the Commonwealth’s approach to public sector labor relations. Currently, Virginia law permits individual localities to opt in to collective bargaining for certain municipal employees. The bill would have overturned this framework and imposed mandatory collective bargaining for public employers. Key provisions included:

• the establishment of a five-member Public Employee Relations Board (PERB) with authority to certify bargaining units, conduct representation elections, and adjudicate unfair labor practice claims;
• mandatory good-faith bargaining, requiring public employees and certified representatives to negotiate over wages, hours, and working conditions, with binding arbitration if the parties reach an impasse;
• the creation of the Virginia Home Care Council, a new entity to serve as the public employer for individual care providers, solely for the purposes of collective bargaining, while preserving participants’ authority to hire, fire, and direct their providers;
• coverage and rights extended to state employees, local government employees, K–12 educators, and higher education service employees, with exclusions for elected officials, confidential employees, temporary workers, and the judicial branch; and
• mandatory binding interest arbitration upon impasse.

The Governor’s Proposed Amendments

Governor Spanberger proposed amendments on April 13, 2026, that, among other things, would have:

• delayed implementation for local governments from July 1, 2028, until January 1, 2030 (when the governor’s four-year term will expire);
• provided additional flexibility for public employers to account for existing budget timelines;
• narrowed the scope of bargaining from requiring bargaining over terms and conditions of employment to permitting bargaining over those terms and conditions; and
• transformed mandatory, binding interest arbitration upon impasse into a non-binding process.

Current Status and Outlook

Governor Spanberger has stated she remains committed to working with the General Assembly and stakeholders to develop a workable public-sector collective bargaining system. However, that is yet to be seen. As of now, Virginia’s current framework, which vests localities with the discretion to opt in to collective bargaining for certain employees, remains in place.

Ogletree Deakins’ Richmond office will continue to monitor developments and will publish updates on the Traditional Labor Relations and Virginia blogs as additional information becomes available.

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Quick Hits

• On June 22, 2026, the Maryland Commission on Civil Rights (MCCR) published its Elements of Proof Guidance, a comprehensive document setting forth the elements of proof the MCCR applies for claims of employment and other discrimination under Maryland State Government Article, Title 20.
• The guidance identifies thirty-five categories of employment discrimination claims—ranging from hiring, promotion, and discharge to harassment, retaliation, and genetic testing—and sets forth the specific elements required to prove each claim under Maryland law.
• While Maryland courts typically look to federal law, the guidance reveals several areas where Maryland law diverges—including additional protected classes, a lower harassment threshold, strict supervisor liability, and different accommodation standards—though it is an agency investigation tool only, and Maryland courts may disagree with the MCCR’s interpretations.

For Maryland employers, the guidance provides a valuable window into how the MCCR evaluates employment-related discrimination claims. The guidance identifies the following thirty-five employment discrimination claims and sets forth the elements required to prove each claim under Maryland law:

• Hiring
• Reasonable accommodation
• Religious accommodation
• Wages
• Benefits
• Terms
• Conditions
• Privileges
• Promotion
• Discipline
• Demotion
• Discharge
• Constructive discharge
• Reinstatement
• Qualifications
• Testing (adverse impact)
• Testing (disparate treatment)
• Training
• Apprenticeship
• Job Classification
• Layoff
• Recall
• Seniority
• Tenure
• Retirement
• Harassment (hostile environment)
• Harassment (quid pro quo)
• Sexual harassment (hostile environment)
• Sexual harassment (quid pro quo)
• Retaliation
• Unfavorable Reference
• Advertising
• Reasonable accommodation discrimination in pregnancy or childbirth
• Genetic testing
• Genetic testing (complainant refusal)

Notably, although the Maryland courts typically look to federal law for guidance in evaluating employment discrimination claims under Maryland law, the guidance also reveals several areas where the MCCR’s analytical framework differs from the federal approach. Below are some of the more significant differences between state and federal law:

1. Protected classes. Maryland law protects additional personal characteristics, including marital status, sexual orientation, gender identity, and military status, which are not protected under federal law.
2. Harassment definition. Until 2022, Maryland law was consistent with federal law in requiring conduct to be “severe or pervasive,” among other things, in order to constitute unlawful harassment. This guidance specifically removes that requirement in the following three situations involving “unwelcome and offensive conduct”: (1) submission to the conduct is made a term or condition of an individual’s employment, whether explicitly or implicitly; (2) submission to or rejection of the conduct is used as the basis for employment decisions about the individual; or (3) based on the totality of the circumstances, the conduct unreasonably creates a working environment that a reasonable person would perceive to be abusive or hostile. Maryland law also provides a separate definition of “sexual harassment” as conduct “that consists of unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature.” Again, such conduct need not be severe or pervasive under the same three situations set forth above.
3. Supervisor harassment liability. Maryland law imposes strict liability for supervisor harassment, which the guidance frames as being foreseeable or taking place within the scope of employment, considering factors such as when and where the acts took place (e.g., workplace, offsite trainings, mandatory retreats, or office parties). This differs from the federal standard, which turns on whether a tangible employment action occurred and the availability of an affirmative defense.
4. Religious accommodation. The MCCR guidance uses a “more than a de minimis cost” undue-hardship standard for religious accommodation, while federal courts now apply the more demanding standard articulated by the Supreme Court of the United States in Groff v. DeJoy.
5. Pregnancy accommodation. Maryland law obligates employers to provide accommodations for “disabilities caused or contributed to by pregnancy or childbirth,” while the federal Pregnant Workers Fairness Act requires accommodations for “known limitations” related to pregnancy, childbirth, or related medical conditions.
6. Retaliation as adverse action. The MCCR guidance lists “adverse employment action” as an element of retaliation, while retaliation under Title VII of the Civil Rights Act of 1964 uses a “materially adverse” standard, which is broader and thus typically easier for individuals to meet.

This guidance is an agency investigation tool only. Accordingly, while the MCCR uses it to evaluate claims, Maryland courts may not necessarily agree with the MCCR’s interpretation of the law. However, the guidance may be helpful for Maryland employers to consider when defending against claims before the MCCR. In responding to MCCR complaints, employers may benefit from addressing each element that the MCCR evaluates in their responses, to clearly rebut such claims within the framework that the MCCR applies.

Ogletree Deakins’ Baltimore office will continue to monitor developments and will provide updates on the Employment Law and Maryland blogs as additional information becomes available.

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Quick Hits

• MSHA enforcement data from July 2024 through April 2026 shows citations under the surface mobile equipment rule have generally declined as metal and nonmetal mine operators have moved toward compliance with written safety program requirements.
• Enforcement has been uneven across districts, with Dallas and Warrendale accounting for most citations under Section 56.23002(a), while many other districts issued few or none.
• Most citations have been treated as non-S&S paperwork violations, but future enforcement may focus more heavily on annual updates, miner input, program availability, and more severe citations after accidents or changing mine conditions.

Enforcement Snapshot

The data shows MSHA issued 863 citations under this regulation between July 2024 and April 2026. Of those citations, 432 were issued in 2024, 369 in 2025, and sixty-two in 2026 through April. This suggests operators have been coming into compliance over time, with the number of citations written for mines not having a program declining.

Enforcement of Section 56.23002(a) appears to be extremely uneven, with two districts in particular issuing a disproportionate number of citations. Indeed, those two districts (Dallas and Warrendale) issued 66 percent of the citations under Section 56.23002(a), 256 and 317, respectively.

In addition, five districts issued either one or zero citations under the provision. Another eight issued twenty or fewer citations under Section 56.23002(a).

About eleven of the 863 citations issued under Section 56.23002(a) resulted in 104(b) failure to abate orders, suggesting that around 1 percent of the mines cited may not have had a program of any kind—yet were unable to formulate one within the time for abatement.

Only thirteen of the 863 citations under Section 56.23002(a) were marked as significant and substantial (S&S). Further, only fifty-seven were issued as high negligence. The data suggests almost all citations issued under this provision so far have been treated like a typical paperwork violation.

Section 56.23002(b) requires that metal/nonmetal operators designate at least one person responsible for evaluating and updating the mobile equipment safety program. From July 2024 through April 2026, only thirty-two citations were issued under this provision. All of them were designated as non-S&S, and none were designated as high negligence.

The particular requirements within the surface mobile equipment safety program for metal/nonmetal operators are set forth in Section 56.23003(a). MSHA issued seventy citations under this provision from July 2024 through April 2026—eight of which were designated as S&S. Nine had high-negligence designations, with seven of those occurring in 2025. This suggests at least some operators may have been tardy in creating a compliant program.

In addition to the seventy citations under Section 56.23003(a), other citations were issued under subparts of that section. Eighteen were issued under subpart (a)(1), which sets forth the required components of a program. Ten of those were issued in 2024, with only two issued so far this year. All eighteen citations were non-S&S, and three were evaluated as high negligence.

An additional ten citations were issued under the components of 56.23003(a)(2) and (4), relating to other components of a program, half of which were marked as S&S. These appear to identify gaps or problems with components of safety programs.

MSHA issued ninety-two citations between July 2024 through April 2026 pursuant to Section 56.23003(b). That regulation requires the individual deemed to be a “responsible person” to update the written safety program annually—or as mining conditions change, accidents or injuries occur, or as changes to mobile equipmentare made. Fifty-three of those citations were issued by two district offices: Dallas and Vacaville.

Sixty-two of the ninety-two citations under Section 56.23003(b) were issued in 2026, with only thirty issued in 2025. This suggests many of the citations may have been issued for failing to update a program at least annually, as required by the regulations.

Section 56.23003(c) requires an operator to solicit input from miners and their representatives in developing and updating the program. MSHA issued twenty-four citations pursuant to this provision, with eighteen issued by the Dallas district office.

Finally, Section 56.23004 requires metal/nonmetal operators to make the written program available for review and inspection by MSHA personnel and miners’ representatives, as well as to provide a copy upon request. Eighteen citations were issued by MSHA at fifteen different mines over the last two years. All were non-S&S, and none were high negligence.

Looking Ahead

It will be interesting to monitor ongoing enforcement of the rule and consider whether MSHA increases the gravity of citations over time, whether operators are cited for failing to update their plans as conditions change, and whether operators are cited more severely under the rule following accidents or injuries relating to surface mobile equipment.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will post updates on the Mine Safety blog as additional information becomes available.

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A version of this article was previously published in Pit & Quarry magazine.

Quick Hits

• In a nonprecedential ruling, the Third Circuit ruled in favor of Shippensburg University, finding that a secretary’s accommodation request to work remotely due to an alleged disability was unreasonable.
• The court noted that the undisputed facts indicated that the secretary had several in-person job responsibilities.
• This case emphasizes the importance of accurately outlining in-person responsibilities in job descriptions, particularly in the context of ADA accommodation requests.

In a nonprecedential ruling in Sheehan v. Shippensburg University, the Third Circuit upheld a summary judgment in favor of Shippensburg University in a disability discrimination lawsuit filed by a psychology department secretary, alleging violations of the Americans with Disabilities Act (ADA), the Pennsylvania Human Relations Act (PHRA), and the Rehabilitation Act (RA).

The secretary, who had been allowed to work remotely during the 2020 to 2021 school year amid the COVID-19 pandemic, requested to work remotely as an accommodation in December 2021 following the emergence of a new strain of the virus. The university denied the secretary’s accommodation request, explaining that working in the office is an essential function of her job. The university later terminated her employment after she refused to return to the office.

In an opinion by Circuit Judge Thomas Hardiman, the Third Circuit held that “a fully-remote accommodation would have been unreasonable given [the secretary’s] duties.” Specifically, the Third Circuit referenced undisputed facts that the secretary’s “position involved many in-person tasks such as running errands on campus, putting notes on faculty members’ doors, going to the print shop, unlocking doors, hanging up flyers, and interacting with students in the psychology department.” The court also noted that the secretary had admitted that when she worked remotely, some of these duties were not fulfilled or were handled by secretaries from other departments who worked overtime.

The Third Circuit rejected the secretary’s argument that these in-person tasks could be covered by student employees or graduate assistants. The court stated that having those workers perform the tasks is not an accommodation designed to help the secretary perform the essential functions of her position, but rather a “request to be exempted from an essential duty,” quoting prior case law. (Emphasis in original). Further, the secretary was supposed “to supervise the graduate assistants to ensure they are physically present for their assigned hours in the department.” The Third Circuit also noted that the psychology department only hires one student worker when classes are in session. The university “is not required to hire more student workers to accommodate” the secretary, the court stated.

Key Takeaways

The Third Circuit’s ruling in Sheehan v. Shippensburg University, while not precedential, highlights how federal courts are approaching accommodation claims for remote work after employers’ return-to-office mandates. Central to the ruling were the undisputed facts that the secretary’s role included many tasks that required in-person work, including locking doors, hanging up flyers, interacting with students, and supervising the attendance of graduate assistants.

Notably, the court found that requiring other employees to perform those tasks is not a reasonable accommodation because it exempts the employee from those essential job responsibilities rather than assists the employee in performing those essential functions, and because, in some cases, it would have required the employer to hire additional student workers to perform them.

Employers with return-to-office mandates may want to note the potential for ADA requests for continued remote work as an accommodation, as well as the risk of disability discrimination lawsuits arising from denied requests. The Third Circuit’s recent ruling indicates that employers, at least in the Third Circuit, will be more likely to succeed in defending such claims where they can show that certain essential job responsibilities can only be done in person. Employers may want to ensure that job descriptions accurately reflect in-person job responsibilities.

Ogletree Deakins’ Multistate Compliance Practice Group will continue to monitor developments and will provide updates on the Employment Law, Higher Education, Leaves of Absence, Multistate Compliance, Return to Work, and State Developments blogs as additional information becomes available.

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Quick Hits

Working students may not work more than twenty hours per week during the academic term in order to maintain their preferential status regarding social security contributions.

For interns, it is important for employers to distinguish between mandatory and voluntary internships so that any obligation to pay compensation can be assessed.

Summer workers may be particularly attractive because qualifying short-term employment can be exempt from social security contributions.

Working Students: Temporary Employment With Special Social Security Rules

Working students are employees and generally enjoy the same protections under labor law as other employees—from protection against termination of employment and vacation entitlement to the right to continued pay in the event of illness. However, working students receive preferential treatment regarding social security, meaning they do not pay the full social security contributions: Anyone enrolled at a university who works no more than twenty hours per week during the academic term is exempt from health, long-term care, and unemployment insurance. The obligation to pay into the pension insurance system, however, remains in effect. Overall, working students retain more of their gross pay as net pay. For this reason, employers often request a current certificate of enrollment at the start of employment and at the beginning of each new semester.

The twenty-hour limit must be strictly observed. It applies during the academic term. Although working hours may be temporarily exceeded during breaks between terms, employers often carefully document the working hours of working students to ensure that their employment does not jeopardize their working student status. If the twenty-hour limit is exceeded during the academic term, the working student privilege no longer applies—with the result that social security contributions may have to be paid retroactively. The social insurance agencies regularly review this during audits.

Another practical consideration: Working student status requires that one’s studies remain the primary occupation. However, students who are no longer actively pursuing their studies do not meet the requirements.

Interns: Mandatory Internship or Voluntary Internship?

The classification of interns under labor law depends largely on whether the internship is mandatory or voluntary. This distinction has significant implications for employers, particularly regarding the obligation to pay compensation.

Mandatory internships, which are required as part of a school or higher education program, are not subject to the Minimum Wage Act (Mindestlohngesetz (MiLoG)). The legislature assumes that the primary focus here is on the educational purpose rather than the work performance itself. Employers are therefore not required to pay the statutory minimum wage. Compensation for mandatory internships is not required by law; if the employer wishes to pay compensation, the amount can be freely agreed upon.

The situation is different for voluntary internships. These are generally subject to the Minimum Wage Act, at least if the internship lasts longer than three months. The three-month limit refers to the actual duration of the internship. If this limit is exceeded, the statutory minimum wage must be paid starting on the first day of the internship, not just from the fourth month onward. For such voluntary internships lasting more than three months, the employer must pay the statutory minimum wage. As of 2026, this amounts to EUR 13.90 gross per hour. Violations of minimum wage requirements can have significant and far-reaching consequences.

Regardless of the issue of compensation, the following applies: Interns are not employees, let alone second-class employees. The primary focus of their work is transferring skills and knowledge and gaining insight into the company or the profession. Statutory employee protection regulations, such as the Working Hours Act, apply in full.

A common pitfall in practice is the incorrect classification of a purported internship as an employment relationship. If the intern is primarily used as a regular employee and there is no longer a discernible educational purpose at the forefront, the internship can be reclassified as an employment relationship—with all the resulting consequences, such as the obligation to pay the minimum wage.

Summer Workers: Properly Structuring Short-Term Employment

Summer workers are typically high school students or college students who are employed for a short period during school breaks or the semester break. Under social security law, short-term employment offers significant advantages with regard to Section 8(1) No. 2 of Book Four of the German Social Code (Sozialgesetzbuch IV (SGB IV)): If the employment is limited from the outset to three months or seventy working days in a calendar year and is not carried out on a professional basis, the employment is exempt from mandatory insurance in all branches of social security (statutory health and long-term care insurance, unemployment insurance, and pension insurance).

The criterion of whether the employment is carried out on a professional basis is of particular practical importance here. For high school students and college students who hold the job alongside their education, it is generally not considered to be carried out on a professional basis. For other individuals—such as unemployed persons—however, short-term employment may be classified as being carried out on a professional basis if it is not merely of minor economic significance. This is typically assessed carefully on a case-by-case basis before the employment begins.

Legally, summer jobs are generally considered fixed-term employment relationships. To be valid, the fixed-term provision in the contract must comply with the requirements of the Part-Time and Fixed-Term Employment Act (Teilzeit- und Befristungsgesetz (TzBfG)). In particular, the written form requirement under Section 14(4) TzBfG must be strictly observed: The fixed-term employment contract must be concluded in writing (i.e., with handwritten signatures from both parties) before the employee begins work. A verbal agreement, an exchange of emails, or a delayed conclusion of the contract after work has begun renders the fixed-term provision invalid and results in an indefinite employment relationship. These mistakes occur frequently in practice—especially with summer workers who are brought in on short notice. During the summer break, the human resources department is often understaffed, which further contributes to such mishaps.

If minors are employed as summer workers, the provisions of the Youth Employment Protection Act (Jugendarbeitsschutzgesetz (JArbSchG)) must also be observed. Minors aged fifteen and older may generally not work more than eight hours per day or more than forty hours per week. If they are still subject to full-time compulsory education, employment during school breaks is generally permitted for no more than four weeks per calendar year. Night and weekend work is permitted only in very limited exceptional cases.

Takeaways

Employing working students, interns, and summer workers offers companies flexibility—but requires careful planning and attention to employment law. Errors in contract drafting, social security classification, or compensation can have significant negative consequences. The specific characteristics of each form of employment and the timely review of internal processes are therefore relevant well in advance of the summer season.

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

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

Maximilian Gössling contributed to this article as a legal trainee in the Berlin office of Ogletree Deakins.

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Quick Hits

• The Supreme Court ruled that the Equal Protection Clause and Title IX allow states to designate school sports participation based on biological sex and that the laws do not unlawfully discriminate against transgender individuals.
• The Court found that Title IX does not require schools to make exceptions to biological sex-based sports to allow biological males who identify as female and who may have taken puberty-delaying medication or hormones.
• The Court found that the Equal Protection Clause permits biological sex-based distinctions in sports participation based on general physical differences between males and females.

Ruling in a pair of consolidated cases—West Virginia v. B..P.J. and Little v. Hecox—the Supreme Court upheld laws in Idaho and West Virginia that require designated female sports teams at public schools, colleges, and universities to be based on biological sex, thereby restricting transgender women and girls from participating on female-designated sports teams consistent with their gender identity.

The decision has significant implications for schools, colleges, universities, and other educational institutions.

Background

West Virginia v. B.P.J., No. 24-43, involved West Virginia’s “Save Women’s Sports Act,” enacted in 2021, which banned students who were biologically male at birth from participating in competitive or contact sports designated for female students in public secondary schools and colleges. A a transgender girl, who first started transitioning in third grade and began taking puberty-delaying medication and estrogen before puberty, challenged the law alleging that the categorical prohibition on transgender girls playing on girls’ sports teams violated Title IX and the Equal Protection Clause.

The Little v. Hecox case, No. 24-38, involved a transgender woman and Boise State University (BSU) student who was barred from trying out for BSU’s women’s track and cross-country teams based on Idaho’s “Fairness in Women’s Sports Act” (HB 500), which categorically banned transgender women and transgender girls from participating in women’s and girls’ sports at public schools at all levels, from elementary school through college. The student alleged the law, which was signed into law by Idaho Governor Brad Little in March 2020, violated the Equal Protection Clause.  

The Majority’s Decision

Writing the opinion of the Court, Justice Brett Kavanaugh concluded that Title IX allows schools to provide separate women’s and men’s teams as defined by biological sex. The Court held that separate teams for biological males and females are reasonable, given the inherent physical differences between the sexes. The Court also specifically noted that in recent years, twenty-seven states, the National Collegiate Athletic Association (NCAA), the U.S. Olympic and Paralympic Committee (USOPC), and the International Olympic Committee (IOC) have all drawn the same biological line.

The Court also rejected an argument that its prior ruling in Bostock v. Clayton County was relevant in this case, explaining that Title VII of the Civil Rights Act of 1964 concerns employment and generally requires that men and women be treated without regard to sex, whereas Title IX authorizes separate men’s and women’s sports teams. The Court concluded that “Title VII and Bostock are not relevant in this very different statutory and factual context.”

Justice Neil Gorsuch, who authored the Bostock opinion, stated in a concurring opinion that Bostock, “supports, not undermines, the Court’s conclusion” because both cases turned on biological sex. But Justice Gorsuch wrote, “It is a mistake to assume that, just because firing someone in part because of his biological sex amounts to unlawful discrimination in violation of Title VII, sponsoring a single-sex sports team limited to biological women or girls must also amount to unlawful discrimination in violation of Title IX.”

As to the constitutional challenge, the Court applied intermediate scrutiny, under which sex-based classifications are permissible only when substantially related to an important governmental objective. The Court agreed with the States that safety and competitive fairness are important interests and that limiting women’s and girls’ sports to biological females is substantially related to those interests. The majority held that States are not required to conduct an individual-by-individual comparison of athletes’ capabilities to satisfy intermediate scrutiny, reasoning that the validity of a classification depends on its relation to the overall problem rather than its application in any individual case. The Court emphasized the “enormous practical and administrability problem” that would arise if courts had to make individualized, athlete-by-athlete assessments.

The Dissent

Justice Sonia Sotomayor, joined by Justices Elena Kagan, and Ketanji Brown Jackson, concurred in part and dissented in part. The dissent agreed that the Title IX claims fail, though on a narrower basis than the majority relied. Justice Sotomayor noted that the majority concluded that “sex” means “biological sex” in the sports context, and instead argued that the Court should have proceeded as they did in Bostock “on the assump­tion that ‘sex’ in Title IX refer[s] only to biological distinctions be­tween male and female.” As to the constitutional argument, she maintained that the Court’s equal protection cases require courts to scrutinize whether a sex classification is overbroad as applied to a discrete, readily identifiable subclass.

Key Takeaways

For educational institutions that receive federal financial assistance, the ruling indicates that categorical bans on transgender students participating in women’s and girls’ sports do not violate Title IX. This interpretation of Title IX aligns with the current administration’s enforcement posture, which has sought to enforce a binary and immutable interpretation of biological sex that disregards individual gender identity. The ruling could have further implications under Title IX for educational institutions for sex-based restrictions and policies designed to protect opportunities for women and girls, potentially changing their compliance obligations.

Twenty-seven states have enacted laws restricting transgender participation in school sports: Alabama, Arkansas, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming. Two other states—Alaska and Virginia—have bans in place through state regulations or agency policies.

Schools and universities in those states may need to reassess whether existing institutional policies need to be revised to conform to (or not exceed) what the Supreme Court permits.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group, Higher Education Practice Group, and Sports and Entertainment Industry Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Higher Education, Sports and Entertainment, Idaho, and West Virginia blogs as additional information becomes available.

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Quick Hits

• The Supreme Court reaffirmed that the Fourteenth Amendment grants automatic citizenship to virtually all children born on United States soil (i.e., “birthright citizenship”).
• The ruling affirmed lower court rulings that enjoined an executive order by President Donald Trump, which sought to restrict U.S. citizenship conferred at birth to children with at least one parent who is a U.S. citizen or a lawful permanent resident.
• The ruling preserves the status quo and the long-standing legal precedent of birthright citizenship in the United States.

The ruling by Chief Justice John Roberts, joined by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Jackson, preserves longstanding precedent on birthright citizenship, confirming that “a child born on American soil and subject to American law was made an American citizen.” Employers need not take any action in response to this decision.

The Court held by a majority that “subject to the jurisdiction thereof” within the Citizenship Clause of the Fourteenth Amendment encompasses all persons born on U.S. soil, with only narrow exceptions (such as for children of foreign diplomats). The majority rejected the government’s domicile-based interpretation of the citizenship clause, finding it unsupported by the text, history, and precedent of the Fourteenth Amendment.

Justices Jackson (joined in part by Justice Sotomayor) and Kavanaugh concurred. Jackson emphasized the Fourteenth Amendment’s broad guarantee of birthright citizenship for all persons born in the U.S., while Kavanaugh said the case should have been decided on statutory grounds, leaving open Congress’s ability to limit birthright citizenship in the future.

Multiple dissenting opinions, led by Justice Clarence Thomas (joined by Neil Gorsuch) and joined separately by Justices Samuel Alito and Gorsuch, contend that the Citizenship Clause requires domicile—not mere birth on U.S. soil—and that the majority’s broad ruling “devalues” American citizenship by constitutionalizing a rule most nations have abandoned.

Executive Order Struck Down

The Court upheld lower court rulings that had enjoined President Donald Trump’s Executive Order 14160, which was issued on his first day in office on January 20, 2025. That order sought to limit U.S. citizenship conferred at birth (“birthright citizenship”) to children who have at least one parent who is a U.S. citizen or a lawful permanent resident (also known as a green card holder). Multiple lawsuits challenging the executive order’s constitutionality were filed in the subsequent months, resulting in a Supreme Court ruling in a related case (Trump v. CASA, Inc.) that limited the authority of federal district courts to issue nationwide injunctions but did not address the constitutionality of Executive Order 14160.

In summarizing their holding and acknowledging the government’s domicile-based interpretation, the majority noted the Court had “exhaustively canvassed the test and history of the Citizenship Clause” and at no point could it find evidence in the historical record that the congressional ratifiers of the Fourteenth Amendment “thought themselves to be imposing a domicile limitation.”

In closing its opinion and affirming the decision of the District Court for the District of New Hampshire, the majority noted the “Framers of the Fourteenth Amendment extended [the promise of citizenship] to ‘every free-born person in this land,’” concluding “[w]e keep that promise today.”

Status of Executive Order 14160

Executive Order 14160 remains enjoined and unenforceable. Consistent with the lower courts that had heard this case, the Supreme Court ruled that Executive Order 14160 contradicted the plain language of the Fourteenth Amendment. In addition, U.S. Citizenship and Immigration Services’ (USCIS) July 2025 implementation plan, which outlined how the executive order would have been applied if upheld, has no further legal effect. Citizenship continues to be conferred at birth to all children born in the United States, consistent with long-standing law and policy, with limited exceptions, such as for children born to foreign diplomats.

What This Means for Employers

The ruling preserves the status quo and the long-standing legal precedent of birthright citizenship in the United States. Because the executive order has been blocked by multiple courts since January 2025 and has never taken effect, employers need not take action in response to this decision. However, the legislative landscape may continue to evolve, and employers should remain attentive to potential efforts by Congress to codify statutory restrictions on birthright citizenship.

While no action is required today, the legal and legislative landscape may continue to shift. Employers are encouraged to monitor any future developments, including potential Congressional action or state-level measures, that could affect their nonimmigrant workforce.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments related to this decision and provide updates on the Immigration blog 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.

For more insight into this development and other critical immigration issues facing employers today, please join our Virtual Immigration Insights Symposium on Wednesday, October 7, 2026, from noon to 2:30 p.m. ET. Register here.

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