Quick Hits

• The DOJ recently published guidance that clarifies legal protections for religious beliefs and practices in the federal workplace, consistent with recent executive orders and decisions from the U.S. Supreme Court.
• The U.S. Constitution, Title VII of the Civil Rights Act of 1964, and the Religious Freedom Restoration Act of 1993 (RFRA) protect religious expression and practices by individuals and organizations.
• The new guidance is directed to federal agencies, but it may give private employers insights into governmental regulators’ enforcement approaches and priorities, and well as potential claims brought by employees and their attorneys.

The U.S. Constitution protects the right to belief and worship, as well as the right to abstain from belief or worship. Additionally, Title VII and the RFRA protect religious expressions and practices by individuals and organizations, including those “employing others,” as the DOJ guidance explains. The guidance outlines a series of principles to guide federal agencies in ensuring compliance with these federal laws. Those principles have implications for private employers, including with regard to workplace conduct and expression, as well as religious accommodations.

Expansive Definition of Protected Religious Exercise

The guidance defines the “free exercise of religion” as encompassing not just belief or worship but “the right to perform or abstain from performing certain physical acts in accordance with one’s beliefs.” This language signals a federal enforcement approach that will view religious exercise claims broadly.

Employers may find employees invoking religious protections and objections for a wider range of conduct beyond worship attendance or Sabbath observance, to potentially include daily behavioral choices, dress, speech, interactions with coworkers, and exemptions from certain job duties.

Religious Speech and Expression in the Workplace

The guidance states that “[w]here speech or expression is part of a person’s religious observance and practice, it falls within the scope of Title VII,” and that “[s]peech or expression outside of the scope of an individual’s employment can almost always be accommodated without undue hardship to a business.” It further notes that speech “within the scope of an individual’s employment, during work hours, or in the workplace may, depending upon the facts and circumstances, be reasonably accommodated.”

The guidance specifically references prior guidelines issued by the Clinton administration as providing “useful examples for private employers,” such as the following: “employees may keep religious materials on their private desks and read them during breaks”; they may “discuss their religious views with other employees, subject to the same limitations as other forms of employee expression,” they may “display religious messages on clothing or wear religious medallions,” and they may “invite others to attend worship services … except to the extent that such speech becomes excessive or harassing.”

For employers, this posture may create significant tensions with traditional antiharassment policies. Employers that discipline employees for proselytizing, displaying religious messages, or expressing religiously motivated views on controversial topics (e.g., views on sexual orientation, gender identity, preferred pronouns, or other protected characteristics) may face objections that such discipline constitutes religious discrimination. Employers may wish to carefully calibrate their harassment and workplace conduct policies to ensure they do not categorically prohibit religious expression without an individualized assessment of whether accommodation would cause undue hardship.

Religious Accommodations

Under Title VII, employers must reasonably accommodate an employee’s religious needs, absent undue hardship. The new guidance incorporates executive orders and Supreme Court of the United States decisions in recent years, including in Groff v. DeJoy, which held that an accommodation poses an “undue hardship” only if it imposes a burden that is “substantial in the overall context of an employer’s business.” Groff emphasizes that “no undue hardship is imposed by temporary costs, voluntary shift swapping, occasional shift swapping, or administrative costs.” It further asserts that coworker animosity to a particular religion, religion in general, or the notion of religious accommodation does not support an undue hardship defense.

The guidance reiterates that a reasonable accommodation should eliminate the conflict between a job requirement and an employee’s religious belief or practice. Thus, “Title VII requires an employer to consider what adjustment or modification to its policies would effectively address the employee’s concern; an ineffective accommodation is insufficient.” Furthermore, employers are required to engage in an interactive process with an employee to identify an accommodation that is reasonable and effective. What should not be part of that process is questioning whether the employee’s religious belief is sincere.

For employers, this means that undue hardship arguments must be supported by specific, demonstrable evidence of substantial cost or disruption to the workplace. Employers may wish to focus on concrete and significant operational burdens, and not assumptions or coworker complaints. Additionally, the reasonable accommodations process must seek an accommodation that works in practice, not just on paper. While an employer is not required to provide the employee’s preferred accommodation, any offered alternative must effectively eliminate the conflict.

Discrimination Based on Disparate Treatment

The guidance reiterates that Title VII’s prohibition on disparate treatment “is implicated any time religious observance or practice is a motivating factor in an employer’s covered decision.” This includes making assumptions about an individual based on the individual’s perceived or suspected religion. The guidance emphasizes that denying accommodations for religious reasons that are provided for secular ones will constitute a legal violation. But even beyond that, the guidance asserts that “the fact that an accommodation may grant the religious employee a preference is not evidence of undue hardship because Title VII ‘gives [religious practices] favored treatment.’”

Employers may wish to train hiring managers that adverse decisions should not be based on assumptions about an applicant’s or employee’s religious practices (e.g., declining to hire someone perceived to wear religious garb because of anticipated scheduling conflicts). In addition, employers may wish to ensure that accommodations, such as scheduling flexibility, that are granted for secular reasons are equally available for religious reasons. But the converse is not necessarily true. It would appear that traditional employer concerns about “special treatment” for religious employees has been effectively neutralized.

Religious Organizations

Section 702 of Title VII provides protections to religious organizations, allowing them to employ only individuals of a particular religion or those “whose beliefs and conduct are consistent with the employer’s religious precepts.” The guidance notes that this protection may extend to for-profit companies that operate with consistent religious mission statements.

Title IX of the Education Amendments of 1972 bars sex discrimination in educational institutions that receive federal funding. However, the guidance explains, educational institutions controlled by religious organizations are “exempt from Title IX’s prohibition on sex discrimination where that prohibition ‘would not be consistent with the religious tenets of such organization[s].’”

Next Steps

Employers may wish to review their dress codes, codes of conduct, attendance policies, antiharassment policies, and protocols for handling religious accommodation requests to determine if any adjustments may be advisable. Employers also may wish to train managers on compliance with federal and state religious discrimination and accommodations laws.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will post updates on the Employment Law, Higher Education, and Leaves of Absence 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.

Fiona W. Ong is a shareholder in Ogletree Deakins’ Baltimore office.

James M. Paul is a shareholder in Ogletree Deakins’ Tampa and St. Louis offices.

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 Mexican Tax Authority’s tax electronic signature (e.firma) will now be the only digital credential for ALL employer procedures before the Mexican Institute of Social Security (IMSS).
• Employers have until October 14, 2026, to update their credentials.

The agreement (ACDO.AS2.HCT.160726/3.P.DIR) is the result of a transition process intended to digitalize all IMSS processes.

Main Modifications and Procedures

The implementation of this agreement represents that the e.firma will be the only valid certificate for authenticating an employer’s identity for any IMSS procedure and that legal representation of a company must be managed through the IMSS Virtual Desktop using the legal representative’s company’s e.firma to access.

As a consequence of the latest requirements, the IMSS digital certificates will no longer exist as the Employer Electronic Identification Number (Número Patronal de Identificación Electrónica) (NIPE)).

The following are some of the procedures that will be affected by this disposition:

• Affiliation movements (enrollments, cancellations, and salary modifications)
• Risk premium determination
• Payment receipts of social security contributions (SUAs)
• Access to the IMSS’s mailbox

Tips for Ensuring Future Compliance

The same agreement grants employers a ninety-day period, which will elapse on October 14, 2026, to incorporate e.firma to be in compliance and to avoid any fines related to the compliance of other obligations.

Before the ninety-day period elapses, employers may want to ensure that they have taken the following actions:

1. Verify that the e.firma of the company and of the legal representative is active.
2. Link the e.firma to the Employer Registration Number at the IMSS Virtual Desktop.
3. Designate and link the legal representative’s e.firma.

The employer’s representative must have an e.firma that has been duly updated; otherwise, the link cannot be properly executed.

Ogletree Deakins’ Mexico City office will continue to monitor developments and will provide updates on the Cross-Border blog as additional information becomes available.

Pietro Straulino-Rodríguez is the managing partner of the Mexico City office of Ogletree Deakins.

Natalia Merino Moreno is an associate in the Mexico City office of Ogletree Deakins.

María José Bladinieres is a law clerk in the Mexico City office of Ogletree Deakins.

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Quick Hits

• To date, only five countries in the EU have fully implemented the rules outlined in the EU’s pay transparency directive.
• The remaining EU countries are working toward implementing the directive, but have not done so yet, although the deadline for implementation has passed.

The deadline for member states to transpose EU Pay Transparency Directive 2023/970 into national law was June 7, 2026. Greece, Italy, Lithuania, Malta, and Slovakia finalized their national laws on or shortly after the deadline. Poland and Estonia have implemented the requirements related to recruiting only at this stage.

The minimum requirements of the EU directive apply to all public and private employers, regardless of size. It requires employers to:

• provide the starting salary or pay range to a candidate in the job advertisement or state it before the job interview or with enough time to allow a meaningful negotiation regarding pay to take place;
• ensure that job advertisements and job titles are gender neutral and that recruitment processes are executed in a nondiscriminatory manner;
• refrain from asking job candidates about their pay history;
• provide employees, on request, with information on their individual pay level and the average pay levels, broken down by sex, for categories of workers doing the same work or work of equal value; and
• conduct a joint pay assessment (involuntary pay audit) if pay reports reveal a gender pay gap of at least 5 percent that cannot be objectively justified, and it has not been remedied by the employer within a six-month period.

Furthermore, employers with at least one hundred workers are required to publish data on the pay gap between female and male workers in categories of workers that are performing the same work or work of equal value.

The gender pay gap in the EU currently stands at 11.1 percent, according to statistics from the European Parliament. The pay transparency directive mentions several factors contributing to the pay gap, including sex discrimination, gender stereotypes, the overrepresentation of women in low-paid service jobs, the heavy concentration of women in certain industries (sometimes called horizontal segregation), and unequal sharing of family caregiving responsibilities.

The UK government is seeking comments on its own pay transparency proposal.

Next Steps

Implementation of the directive is likely to pick up pace across EU member states in the coming months, and past experience shows that implementation announcements can happen quickly and without advance warning.

Employers with employees in Slovakia, Italy, Lithuania, Malta, Greece, Poland, and Estonia must be compliant with existing legislation regarding the EU pay transparency directive that is in force now. Employers with employees across the EU may want to prioritize an examination of their current job architecture, policies, and practices regarding pay rates, pay transparency, and recruitment processes to identify changes that will be needed in the near future to ensure compliance.

Information and updates on the progress of the directive’s implementation across the European Union can be found using Ogletree Deakins’ Member State Implementation Tracker.

Ogletree Deakins’ Pay Equity Practice Group will continue to monitor developments and will post updates on the Cross-Border, Europe, Middle East, and Africa, and Pay Equity blogs as additional information becomes available.

Daniella McGuigan is a partner in Ogletree Deakins’ London 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 July 22, 2026, the California Occupational Safety and Health Standards Board released a revised draft workplace violence prevention regulation that clarifies and narrows employer-provided transportation to only include “employer-provided transportation under the employer’s control.”
• The revised draft regulation no longer includes the previous exception to “Threat of Violence” that provided “The employer is not responsible for texts, electronic messages, or personal social media that are not brought to the attention of the employer or that the employer could not otherwise be reasonably aware of.”
• The new draft states that an employee assistance program would satisfy the requirement to offer or make available individual trauma counseling.

The draft regulation would continue to require a workplace violence prevention plan with:

1. the name or job title of the person responsible for the plan;
2. procedures for active involvement of employees in developing and implementing the plan;
3. coordination of the plan with other employers at their worksites;
4. procedures to respond to reports of workplace violence;
5. compliance procedures;
6. communications methodologies for the plan, including reporting workplace violence and communicating investigation results;
7. procedures for responding to emergencies;
8. training procedures;
9. procedures for identifying and evaluating workplace violence hazards;
10. methodology for correcting workplace violence hazards;
11. post-incident response procedures and investigation actions; and
12. procedures for review and evaluation of the workplace violence prevention plan.

The draft regulation clarifies and narrows employer-provided transportation to only include “employer-provided transportation under the employer’s control.”

The draft regulation clarifies the “work practice controls” example related to staffing levels. Now, appropriate staffing levels would be “based on the employer’s workplace violence hazard assessment” required under the employer’s plan.

The Standards Board added feasibility language to the section on engineering and work practice controls.

The Standards Board also removed the reference to stalking as a workplace violence hazard. According to the materials, stalking will be listed in a future California Occupational Safety and Health Administration (Cal/OSHA) guidance document along with other examples of workplace violence.

The section that would require employers to offer or make available individual trauma counseling remains despite many employer concerns. The new draft states that an employee assistance program would satisfy the requirement to offer counseling.

The Standards Board will accept comments through August 17, 2026, and then provide a final version for the notice and subsequent vote. A vote approving the final draft standard is expected for the fall or winter with an implementation date of January 1, 2027.

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Quick Hits

• On August 3, 2026, the State Department published a final rule, effective immediately, that establishes a permanent visa bond program.
• The rule allows consular officers to require certain B-1/B-2 visa applicants from designated countries to post bonds of $10,000, $15,000, or $20,000 based on an applicant’s individual circumstances.
• A visa bond may be forfeited if the visa holder violates the bond’s terms and conditions, including by overstaying or seeking asylum or other humanitarian protection while in the United States.

Under the program, which takes effect immediately, consular officers may require applicants who are nationals of designated countries to post a cash bond of up to $20,000 as a condition of visa issuance to help ensure they maintain nonimmigrant status and depart the United States as required.

Background

The final rule permanently establishes the visa bond program that was piloted in August 2025 pursuant to Executive Order 14159, Protecting the American People Against Invasion. According to the State Department, the pilot program was intended to encourage foreign governments to reduce visa overstay rates, improve information sharing, and strengthen identity verification and screening practices.

The department reported that the pilot program covered fifty countries and significantly reduced overstays among travelers who posted visa bonds. Based on those results, the department concluded that the program was an effective tool for promoting compliance with the terms of B-1/B-2 visas.

Covered Countries

The program applies to B-1/B-2 visa applicants who are nationals of countries designated by the State Department based on factors such as visa overstay rates, information-sharing practices, identity verification, and screening and vetting capabilities. Countries participating in the visa waiver program are excluded.

Visa Issuance and Bond Requirements

If the required bond is posted and the applicant is otherwise eligible, a consular officer may issue a single- or multiple-entry visa valid for three to twelve months, depending on visa reciprocity. Bonded travelers must enter and depart the United States through commercial airports of entry, including U.S. Customs and Border Protection (CBP) preclearance locations.

Bond amounts will be returned if the visa holder complies with the terms of the visa and bond. However, the full bond amount will be forfeited if the individual substantially violates the bond conditions, including by overstaying the authorized period of admission or filing for asylum or other humanitarian protection. Although a timely request for an extension of stay or change of status is not itself a bond violation, U.S. Citizenship and Immigration Services (USCIS) may consider the existence of a visa bond as a negative discretionary factor when adjudicating those requests.

The rule does not establish a formal process for requesting a waiver of the bond requirement. However, the assistant secretary for consular affairs, or a designee, may waive the requirement for an individual applicant, a category of applicants, or an entire country if doing so would not be contrary to the national interest.

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

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Quick Hits

• A government contractor code of business ethics and conduct addresses risks and compliance obligations specific to government work such as procurement integrity, accurate billing, conflicts of interest, mandatory inspector general (IG) disclosure.
• Although the code is mandatory for contracts and subcontracts over $7.5 million with performance periods exceeding 120 days, the FAR recommends one for all contractors.
• A general corporate ethics policy may not cover these government-specific topics. The two documents serve different purposes, potentially leaving the company exposed to significant compliance risks.
• If an instance of noncompliance occurs in performance of a government contract or subcontract, having a code in place can help mitigate significant penalties; DOJ and the U.S. Sentencing Guidelines treat a functioning compliance program as a factor in their assessment.

Most companies already have a general ethics or compliance policy covering topics like workplace harassment, data privacy, and insider trading. But those policies may not address government-specific risk areas. Companies may assume their existing ethics program covers government contracting conduct, when in practice it does not. This article explains what a government contractor code of business ethics and conduct is, where it comes from in the Federal Acquisition Regulation (FAR), and why companies increasingly maintain one as a matter of good governance.

What the Code Is and Where It Comes From

The code is a written set of standards governing ethical conduct in connection with government contract performance. It is paired with an awareness and compliance program (training, reporting mechanisms, monitoring) and an internal control system. Together, these form the compliance infrastructure the government expects from its contractors. The substantive policy on contractor ethics lives in FAR Subpart 3, titled “Improper Business Practices and Personal Conflicts of Interest,” specifically in Subpart 3.10. This is where the government articulates what it expects from contractors and subcontractors in terms of ethics programs. Separately, FAR Part 52 contains the actual contract clauses that get incorporated into government contracts. The clause in FAR 52.203-13, “Contractor Code of Business Ethics and Conduct,” is the mechanism that implements the Part 3 policy as a binding contract term. When a contractor sees this clause in its contract or subcontract, it is the regulatory expectation from Subpart 3.10 taking effect as a contractual obligation.

The code becomes a mandatory contract or subcontract requirement when a contract or subcontract is expected to exceed $7.5 million and has a performance period of more than 120 days. There are limited exceptions for certain commercial product or service contracts and contracts performed entirely outside the United States. When the clause applies, the company must have a written code in place within thirty days of award. Below that threshold, the FAR still recommends a code as a best practice for all companies performing government work. Specifically, FAR 3.1002 mandates that “[g]overnment contractors must conduct themselves with the highest degree of integrity and honesty,” and they “should have a written code of business ethics and conduct.” The regulation further advises that, “[t]o promote compliance with such code of business ethics and conduct, contractors should have an employee business ethics and compliance training program and an internal control system” that is “suitable to the size of the company and extent of its” federal contract portfolio. The recommendations reflect the reality that the underlying compliance risks unique to the federal marketplace exist on government contracts or subcontracts of any size.

How This Differs From a General Corporate Ethics Policy

Many companies already maintain a general code of ethics or corporate compliance policy. While valuable, these policies serve a different purpose. A general ethics policy typically addresses broad workplace topics: anti-harassment, workplace safety, data privacy, insider trading, and general anti-corruption. These are designed for companywide application across all business lines.

The FAR-driven code has a narrower focus. It addresses risk areas specific to government contracting: accurate representations in proposals and invoices, procurement integrity (protecting nonpublic bid and source selection information), anti-bribery and anti-kickback requirements, personal and organizational conflicts of interest, post-government employment restrictions, antitrust and fair competition rules, government cost accounting and timekeeping accuracy, protection of government property and data, and the mandatory IG disclosure obligation.

A general ethics policy may not address procurement integrity, organizational conflicts of interest, government cost accounting rules, or a disclosure obligation to a federal inspector general. These are distinct, specific regulatory areas that require their own treatment.

Why Companies Adopt a Code Voluntarily

Many companies maintain a FAR-compliant code even when their contracts or subcontracts fall below the mandatory threshold. A written code provides employees with clear guidance on the compliance risk areas unique to government contracting and establishes internal reporting channels and creates a framework of documented controls to mitigate that risk. The False Claims Act imposes treble damages plus per-claim penalties and those penalties are assessed per claim rather than as a percentage of contract value. A single inaccurate certification, overbilled invoice, or falsified timesheet on a relatively small contract invokes the same statutory framework as a billing error on a multibillion dollar program. This means that any company submitting claims to the federal government operates within the False Claims Act’s reach, regardless of whether its contracts cross the FAR’s dollar threshold for mandatory adoption of a code.

In the event a compliance risk is realized during the performance of a government contract or subcontract the prior adoption of a code can mitigate the consequences to the company. Both the U.S. Sentencing Guidelines for organizations and the U.S. Department of Justice’s (DOJ) Evaluation of Corporate Compliance Programs identify specific hallmarks of an effective compliance program. These include leadership commitment, written standards, a designated compliance officer, training, confidential reporting channels, nonretaliation, monitoring and auditing, and consistent discipline. These are the same programmatic components that FAR 52.203-13 requires. The overlap is by design. Companies that maintain these processes, whether voluntarily or by contractual mandate, are better aligned with the frameworks DOJ uses during charging decisions, sentencing, and suspension or debarment proceedings. Both the Sentencing Guidelines and DOJ’s published guidance apply these expectations without regard to company size or government contract volume.

FAR 52.203-13 defines when a written code becomes a contractual obligation. It does not define when the underlying risks appear or when other regulatory frameworks begin to look for compliance infrastructure. For companies that participate in the government marketplace at any level, a code addressing these specific risk areas represents a straightforward alignment of internal processes with existing regulatory expectations.

Ogletree Deakins’ Government Contracting and Compliance Practice Group will continue to monitor developments and will post updates on the Government Contracting and Compliance blog as additional information becomes available.

Ogletree Deakins has developed a template code of ethics and implementation guidance for federal contractors. To find out more, please contact Joseph E. Ashman or the Ogletree attorney with whom you work.

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Quick Hits

• The Third Circuit recently signified a different approach than other circuits in evaluating cases alleging Title IX sex discrimination than do other circuits at the motion to dismiss stage.
• The Third Circuit clarified that the “straightforward pleading standard” it applies to Title IX claims at the motion to dismiss stage is whether the “alleged facts, if true, support a plausible inference that a federally funded college or university discriminated against a person on the basis of sex.” The court’s standard differs from that of other circuit courts that apply doctrinal tests, such as erroneous outcome, selective enforcement, or deliberate indifference.
• The court recognized that its standard required more than the one used by the Second Circuit, which the opinion described as “requiring only facts supporting a minimalplausible inference of discriminatory intent.”

Title IX of the Education Amendments of 1972 prohibits sex discrimination in colleges and universities that receive federal funding.

Applying its “plausible inference standard” in Doe v. Princeton University, the Third Circuit found that the total mix of allegations in the complaint alleged a plausible inference of sex discrimination sufficient to survive a motion to dismiss.

Background on the Case

The lawsuit was brought by a male student, referred to as John Doe, who received a two-year suspension under the university’s disciplinary policy for violations of its Public Safety Policy, after he was accused by two women (a student and her friend who was not a Princeton student) of choking them in March 2023 and April 2023.

Subsequently, Doe filed an internal appeal on the grounds that the disciplinary procedures were not “fair and reasonable,” and the penalty did not “fall within the range of penalties imposed for similar misconduct.” He argued that Princeton’s investigator treated male and female witnesses differently, and that the hearing was improperly rushed. Princeton’s appeal panel denied the appeal.

Then Doe sued Princeton, alleging sex discrimination under Title IX, as well as breach of contract, breach of the implied covenant of good faith and fair dealing, and gross negligence under New Jersey state law. He claimed there was sex-based pressure on Princeton to favor women accusing men of assault. He claimed the university failed to consider testimony from a male student at a different university, who said one of Doe’s accusers also made false choking accusations against him. Doe also argued that, during the hearing, the committee prejudged him as responsible and interpreted all discrepancies and inconsistencies in the accusers’ favor. (In the Title IX context, a respondent can be determined to be responsible, based on an evaluation of all the evidence, using either the preponderance of the evidence or clear and convincing evidence standard. Notwithstanding, until an investigation has concluded, a respondent is presumed not responsible.) One professor on the committee fell asleep during the hearing.

On April 28, 2025, the U.S. District Court for the District of New Jersey dismissed Doe’s claims. It concluded that Doe’s arguments did not show that Princeton’s disciplinary process reflected bias against men. “None of [the] plaintiff’s allegations about the investigation or adjudication support a plausible inference that the university discriminated against him based on sex,” the court stated. It rejected Doe’s arguments that the investigation was unfair and that the university breached his contract by not following its own established procedures for internal investigations and hearings.

Third Circuit’s Ruling

The Third Circuit reversed the district court. Initially, the court observed that Title IX applied to Doe’s claims, even though the university used its public safety policy to assess discipline, rather than its sexual misconduct policy. The court noted that “[u]niversities cannot insulate themselves from Title IX liability by recharacterizing disciplinary complaints that, on their face, indicate the alleged misconduct is of a sexual nature and adjudicating those charges under disciplinary policies with lower procedural protections for respondents.”

The court concluded that the “total mix” of allegations in Doe’s complaint were sufficient to support an inference of sex discrimination, if proven true. “The complaint alleges a series of procedural irregularities—including an imbalanced investigation and hearing, gender-based credibility determinations, and a decision against the weight of the evidence—that are commonly recognized in case law as indicative of gender bias, as well as statements evincing prejudgment by the decision-makers,” it stated. The court held that the same evidence supported Doe’s breach of contract claims.

The court rejected any requirement that plaintiffs use one of the specific doctrinal tests that other circuits have used to classify Title IX theories, including erroneous outcome, selective enforcement, or deliberate indifference. Rather, it ruled that plaintiffs remain “free to characterize their claims however they wish.”

Key Takeaways

This Third Circuit opinion is important in that it sets forth and clarifies the standards for stating sex discrimination claims, regardless of whether underlying discipline was handled under policies prohibiting sexual misconduct or harassment on campus or under other procedures. The Third Circuit recognized the challenge that universities face in balancing the interests of students who report misconduct and those of students accused of misconduct. The court stated that these interests “can coexist when universities employ fair disciplinary procedures to seek truth and accountability.” According to the court, universities must “accommodate both the vital protection of victims’ rights and the essential fairness owed to respondents.”

Whether following Title IX sexual misconduct policies or other disciplinary policies, universities can expect plaintiffs to bring claims alleging sex discrimination under Title IX. Under the Third Circuit’s “plausible inference” standard, such claims may be difficult to dispose of at the motion to dismiss stage.

Title IX is a heavily regulated area, so schools may want to ensure they continuously review and follow both school procedures and regulatory requirements. Conducting a fair investigation and consistently enforcing university policies may reduce the risk of sex discrimination lawsuits. Unbalanced application of disciplinary decisions may create additional liability under Title IX.

Ogletree Deakins’ Higher Education Practice Group will continue to monitor developments and will post updates on the Delaware, Higher Education, New Jersey, Pennsylvania, and Workplace Investigations and Organizational Assessments blogs as additional information becomes available.

Karen Baillie is a shareholder in Ogletree Deakins’ Pittsburgh office.

Stesha A. Emmanuel is a shareholder in Ogletree Deakins’ Boston office and also practices in Rhode Island.

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

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Court Blocks $100,000 H-1B Fee While Appeal Proceeds. On July 24, 2026, the U.S Court of Appeals for the First Circuit denied the Trump administration’s request to stay, pending appeal, a June 8, 2026, decision by the U.S. District Court for the District of Massachusetts that struck down President Donald Trump’s September 2025 $100,000 H-1B proclamation. The court of appeals denied the stay request, finding that the administration had failed to make a strong showing of a likelihood of success on the merits of the appeal. Like the district court, the court of appeals determined that the presidential proclamation and its implementing materials exceeded the authority granted to the executive branch by Congress, as no provision of the Immigration and Nationality Act “references the imposition of the kind of payment requirement at issue.” Accordingly, the federal government is prohibited from collecting the $100,000 fee while the administration’s merits appeal continues. Katherine C. MacIlwaine, Nicole Fink, and Kara Goray have the details.

Senate Committee Approves Sonderling for Permanent Labor Secretary Role. On July 30, 2026, the U.S. Senate Committee on Health, Education, Labor and Pensions advanced the nomination of Keith Sonderling to be Secretary of Labor. Sonderling continues to serve as the acting secretary of labor, a role he assumed in April 2026 upon the resignation of former Labor Secretary Lori Chavez-DeRemer. Sonderling is an attorney who previously served as a Commissioner on the U.S. Equal Employment Opportunity Commission and in the U.S. Department of Labor’s Wage and Hour Division. Sonderling’s understanding of the current policy issues facing employers has earned him the support of the business community.

Senate Tees Up Vote on NLRB Nominees. National Labor Relations Board (NLRB) nominees James Macy and David Prouty are moving closer to Senate confirmation. This week, Senate Majority Leader John Thune (R-SD) included Macy’s and Prouty’s nominations in a package of seventy-four nominations scheduled to be voted on “en bloc” by the U.S. Senate during the legislative week beginning August 3, 2026. Because executive branch nominations require confirmation by a majority vote, not the sixty-vote threshold required for most legislation, the package of nominations is expected to be approved.

NLRB Drops Challenge to New York State Law’s Tenuous Jurisdictional Mantle. This week, the NLRB withdrew its lawsuit challenging a New York law that had granted the state’s Public Employment Relations Board jurisdiction over private-sector labor matters. The law was enacted as a local response to the NLRB’s lack of a quorum that had persisted for much of 2025. This week’s action—a stipulated dismissal agreed to by all parties–comes after a different federal court in New York permanently enjoined the state from enforcing the law, which was preempted by the National Labor Relations Act. NLRB General Counsel Crystal Carey stated in a press release on July 27, 2026, that “attempts to override NLRB jurisdiction through state law are clearly preempted by federal labor law.”

TPS Fallout Continues. Regulators and lawmakers continue to respond to the Supreme Court of the United States’ recent decision in Mullin v. Doe, in which the Court ruled that the Trump administration’s decisions to terminate temporary protected status (TPS) designations were unreviewable by the courts as to non-constitutional claims. Here is the latest:

• Work Authorization Expiration. U.S. Citizenship and Immigration Services (USCIS) has been issuing updates on TPS employment authorization expiration dates. This week, work authorization through TPS expired for individuals from Haiti and Syria. Work authorization is scheduled to expire for individuals under TPS designation for Somalia and Burma (Myanmar) on August 3, 2026, and for South Sudan and Ethiopia on August 6, 2026. These dates are subject to change, so impacted employers and workers should continue to monitor USCIS for further updates.
• Legislative Activity. Congresswoman Sylvia R. Garcia (D-TX) has introduced a discharge petition to force a floor vote on the American Dream and Promise Act of 2025 (H.R. 1589) in the U.S. House of Representatives. Among other provisions, the American Dream and Promise Act would allow beneficiaries of TPS to apply for lawful permanent resident status under certain conditions. Two hundred-eighteen signatures are needed to force a vote on the bill, and 210 representatives—including two Republicans—have signed the discharge petition. A previous version of the American Dream and Promise Act passed the House in March 2021.

SCOTUS Rules on Enemy Combatants. Eighty-four years ago today, the Supreme Court issued its decision in Ex Parte Quirin, a landmark ruling concerning the use of military tribunals to prosecute enemy combatants. The World War II–era case concerned eight German men (two of whom were U.S. citizens)—military intelligence agents—who were transported by German submarines to beaches in New York (specifically, Amagansett Beach, Long Island) and Florida (Ponte Vedra Beach).

Upon making their clandestine landings and coming ashore, the men discarded their German military uniforms and changed into civilian clothes. Their mission was to sabotage U.S. military manufacturing facilities. Captured before they could carry out their plans, the men were tried before a seven-member military tribunal established by President Franklin D. Roosevelt. During the trial, the Germans’ appointed counsel argued that the men should instead be tried in the civilian court system. This argument went all the way to the Supreme Court, which ruled unanimously that the military tribunal was constitutional. Chief Justice Harlan Stone wrote:

[O]ur Government has likewise recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission.

The tribunal continued, and all eight men were found guilty and sentenced to death, though FDR commuted the sentences to time in prison for two of the conspirators who cooperated in the investigation. Ex Parte Quirin went on to play a prominent role in the underlying legal theory behind the post-9/11 enemy combatant terrorist cases.

Quick Hits

• The DOL has proposed a rule that would add an additional electronic disclosure safe harbor modeled on the 2020 “notice and access” safe harbor for pension benefit plans.
• The proposed rule would apply to “group health plans” and would affect approximately 2.7 million ERISA-covered group health plans—but not other welfare benefit plans—covering about 134 million participants.
• The safe harbor would provide a clearer compliance path, but electronic delivery may not be a complete defense, if, for example, there are notice defects or undeliverable emails.

That safe harbor, along with estimates of employer savings of up to $3.9 billion over the next decade, was published in the Federal Register on July 23, 2026. If finalized as proposed, the earliest the rule could become effective is January 1, 2027. Plan sponsors can use the period before any final rule takes effect to align vendor contracts, notice inventories, and recordkeeping practices with the proposed safe harbor and potential litigation defenses.

Background

Current DOL rules established in 2002 generally allow electronic delivery of Employee Retirement Income Security Act (ERISA) disclosures only to participants who are “wired at work” (i.e., who have access to the employer’s electronic information system as an integral part of their duties) or who provide affirmative consent. As a result, plans may need to make individualized eligibility determinations and deliver paper to more participants. In 2020, the DOL finalized a default “notice and access” safe harbor for retirement plans, allowing plan administrators to post pension benefit plan documents online and notify participants by email, without requiring prior consent. The 2026 proposed safe harbor would extend that model to group health plans, modified for health plan privacy concerns.

Covered Individuals and Covered Documents

The safe harbor would be available to provide notice to “covered individuals”—participants, beneficiaries, and other individuals entitled to health plan documents who provide an electronic address (email or mobile number) to the employer, plan sponsor, or administrator, or who have been assigned one by the employer for employment purposes. Adult dependent children could also receive documents electronically if they have provided an electronic address.

“Covered documents” would encompass any document or information the administrator must furnish under Title I of ERISA, including documents that need only be furnished upon request (e.g., under ERISA section 104(b)(4)). This is broader than the 2020 pension safe harbor, which excludes upon-request documents. The proposal could apply to many recurring health plan disclosures, including SPDs, summaries of material modifications (SMMs), COBRA notices, and claims notices.

No Direct Email Delivery

Unlike the 2020 retirement plan safe harbor, the proposed group health plan rule would not permit direct email delivery of covered documents. EBSA cited privacy concerns regarding protected health information (PHI) under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Instead, group health plan administrators would be required to maintain a website where documents can be accessed and would have to furnish a notice of internet availability (NOIA) alerting covered individuals when documents are posted.

Notice of Internet Availability (NOIA)

The proposed rule would require the administrator to furnish a NOIA each time a covered document is posted to the website (or, for combined annual notices, once per plan year, no more than fourteen months after the prior notice). Each notice would be required to include all of the following:

• A prominent statement: “Disclosure About Your Health Plan”
• A statement that important information about the health plan is now available for review
• Identification of the covered document by name
• The website address or hyperlink where the document can be accessed
• A statement of the right to request a free paper copy and instructions for doing so
• A statement of the right to opt out of electronic delivery entirely, free of charge, and how to exercise that right
• A caution that the document need not remain posted for more than one year (or until superseded)
• A telephone number for the plan administrator

Plans generally would send a separate notice when a covered document is posted, although the proposal would allow certain annual or enrollment-related disclosures to be addressed through a combined annual NOIA. Like other participant notices, this would need to be written so that the average plan participant can understand it.

Website Standards

The proposed safe harbor would also impose specific website standards. Covered documents would have to be posted no later than the date otherwise required for furnishing under ERISA, remain available for at least one year (or until superseded), be presented in a manner understandable to the average participant, and be in a widely available format suitable for online reading and printing (e.g., PDF). Documents would also have to be electronically searchable and permanently retainable or downloadable. The administrator would be required to take measures to protect the confidentiality of personal information on the site.

Paper Notice Requirements

Before relying on the new safe harbor, administrators generally would be required to furnish a paper initial notice describing that documents will be delivered electronically, identifying the electronic address to be used, providing access instructions, and reiterating paper-copy and opt-out rights. Specifically, covered individuals would retain the right to request a free paper copy of any covered document at any time. They may globally opt out of electronic delivery entirely, free of charge.

What to Consider Now

The rule is only proposed, but plan sponsors and administrators may want to begin evaluating whether their current disclosure practices would qualify for the new safe harbor if it is finalized. For example:

• when entering into new agreements or amendments with health plan service providers, ensuring that the agreements allow for the use of any new safe harbor disclosure method once finalized;
• inventorying required group health plan disclosures and current delivery methods;
• confirming which participant populations have valid employer-assigned or provided electronic addresses;
• reviewing benefits portals, vendor websites, and mobile applications for access, search, print, retention, and privacy functionality;
• developing procedures for paper-copy requests, opt-outs, undeliverable notices, and post-employment address updates;
• confirming that vendors can maintain records of delivery, bounces, opt-outs, paper requests, and document availability; and
• considering enhanced communications or acknowledgments for high-risk notices, including wellness or tobacco surcharge disclosures.

Although the safe harbor would be voluntary, failure to satisfy its conditions could leave sponsors to defend whether their disclosure practices were otherwise reasonably calculated to reach participants.

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

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Quick Hits

• The D.C. Circuit’s July 2026 ruling in Trustees of the IAM National Pension Fund v. M&K Employee Solutions affirmed most of an $11.4 million withdrawal liability judgment against affiliated employee-leasing entities while reversing a $1.6 million delinquent contributions judgment because the pension fund failed to establish the full four-factor single-employer test beyond common ownership.
• Business owners participating in multiemployer pension plans face potential personal liability under the MPPAA’s controlled group provisions, though courts may exclude casual investment activity from the definition of a qualifying “trade or business,” and successor entities acquiring withdrawing employers’ operations may inherit withdrawal liability regardless of corporate restructuring.
• Employers withdrawing from multiemployer pension plans may want to carefully document applicable interest rates at the time of withdrawal, seek express written agreements on how partial payments will be allocated, and maintain genuine operational separateness among affiliated entities to reduce overall liability exposure and defend against single-employer claims.

Background

M&K Truck Centers operates twenty-eight truck dealerships through affiliated companies, each structured with a “Sales” entity to run the dealership and a separate “Employee Solutions” (ES) entity to hire workers and lease them back to the sales company. Three ES entities signed collective-bargaining agreements requiring contributions to the IAM National Pension Fund. When ES Alsip withdrew from the IAM National Pension Fund at the end of 2018, the pension fund assessed approximately $6.1 million in withdrawal liability. ES Alsip disputed the assessment and, contrary to the MPPAA’s “pay first, dispute later” rule, failed to make interim payments, prompting the IAM National Pension Fund to accelerate the payment schedule and sue. The pension fund also claimed that ES Summit owed approximately $1.6 million in delinquent contributions for work performed at a separate Northern Illinois dealership. The district court granted summary judgment for the pension fund on all claims and entered a $13 million judgment—comprising $11.4 million arising from ES Alsip’s withdrawal liability (including accrued interest and liquidated damages) and $1.6 million for ES Summit’s delinquent contributions. The court held multiple affiliated entities and individuals jointly and severally liable. On appeal, the D.C. Circuit affirmed in part and reversed in part, upholding the ES Alsip withdrawal liability but reversing the $1.6 million judgment against ES Summit.

(This matter is unrelated to the recent Supreme Court of the United States decision in M&K Employee Solutions, LLC v. Trustees of the IAM National Pension Fund, holding that, under ERISA, an actuary for an underfunded multiemployer pension plan may calculate an employer’s withdrawal liability based on actuarial assumptions adopted after the relevant measurement date for withdrawal liability.)

Key Takeaways

Personal Liability for Owners Hinges on ‘Trade or Business’ Analysis

Business owners and individuals with ownership interests in companies that participate in multiemployer pension plans may face potential personal liability. Under MPPAA’s control-group provisions, individuals engaged in a “trade or business” under common control with the withdrawing employer may be held personally liable for withdrawal liability. However, this case offers some reassurance: the court found that casual investment activity, such as occasional house-flipping treated on tax returns as personal transactions, may not constitute a “trade or business” sufficient to trigger personal liability. Owners may want to carefully document the nature of their outside business activities, and maintain a clear separation between personal investments and trade or business activities before withdrawal to assess personal liability exposure.

Controlled Group Liability Applies Automatically to Commonly Controlled Entities

For withdrawal liability, the MPPAA’s controlled group rule under 29 U.S.C. § 1301(b)(1) automatically treats all commonly controlled trades or businesses as a single employer. Common control (determined based upon level of ownership and/or voting interests for corporations) alone is sufficient. The pension fund need not prove interrelated operations, common management, or centralized control of labor relations. In this case, the court confirmed that the ES entities were commonly controlled and thus jointly and severally liable for ES Alsip’s withdrawal liability. The court also found “overwhelming evidence” that each employee-leasing entity was a single employer with its corresponding operating company, resulting in joint liability for pension obligations.

Successor Liability May Attach to Acquiring Entities

Successor companies that acquire operations from a withdrawing employer may inherit the withdrawing employer’s withdrawal liability. The court imposed vicarious liability on Laborforce, LLC, and Employee Services, Inc. (ESI) as successors to the ES entities. Employers considering acquisitions, reorganizations, or new corporate structures may want to conduct thorough due diligence on potential pension liabilities and structure transactions to minimize exposure to unintended liability.

Structuring Relationships With Unrelated Affiliated Entities

Employers using unrelated affiliated entities, such as staffing companies or employee-leasing arrangements, will want to consider how courts assess whether to treat separate entities as a “single employer” for pension purposes. For delinquent contribution claims (as opposed to withdrawal liability), some courts apply the National Labor Relations Board (NLRB) four-factor test, which considers interrelated operations, common management, centralized control of labor relations, and common ownership. Here, the appellate court reversed a $1.6 million judgment for delinquent contributions on summary judgment because the IAM National Pension Fund’s complaint alleged only common ownership between ES Summit and ES Northern Illinois, without demonstrating the other three factors. An employer may defend against single-employer claims by maintaining genuine operational separateness, separate management, distinct labor relations practices, and independent day-to-day operations. Conversely, courts will look beyond corporate formalities to the substance of the relationship.

Withdrawal Liability Interest Rates May Be Locked at Termination

This case provides employers withdrawing from a multiemployer pension plan an argument against increased interest rates imposed after the withdrawal. The court held that when an employer terminates its collective-bargaining agreement and withdraws from the fund, subsequent trust amendments raising interest rates cannot be applied to that employer’s withdrawal liability unless the original agreement expressly authorized such changes. This ruling benefits employers by providing potential certainty around withdrawal costs: once an employer withdraws, the financial terms in effect at that time may govern. Employers contemplating withdrawal may want to carefully document the applicable interest rate provisions and be prepared to challenge any retroactive increases.

Application of Partial Payments

Employers making partial payments on withdrawal liability may want to note that, absent an explicit agreement otherwise, a pension fund will typically apply those payments first to accrued interest rather than to the principal balance. This approach, known as the “United States Rule,” can significantly increase the total amount an employer ultimately pays. Employers negotiating payment terms with a pension fund may want to seek express written agreements specifying how payments will be allocated. A clear allocation agreement, applying payments to principal first or on a pro-rata basis, can reduce overall interest costs and provide greater certainty in financial planning.

Bottom Line for Employers

This decision reinforces several critical practices for employers to consider prior to withdrawing from a multiemployer pension plan. Because the structure of business operations can significantly impact how withdrawal liability is assessed and collected, individual owners can carefully evaluate whether their outside activities could be characterized as a “trade or business” that would expose them to personal liability under the controlled group rules. Employers considering acquisitions or business reorganizations can conduct thorough pension liability due diligence with a clear understanding of how the withdrawal liability rules operate and successor liability risks. Employers using unrelated affiliated entities can maintain genuine operational separateness to defend against single-employer claims. Prior to withdrawal, an employer can document applicable interest rates and be prepared to challenge any retroactive increases. When negotiating partial payment terms, employers can seek express agreements with the multiemployer pension fund specifying how payments will be applied to minimize total costs.

Ogletree Deakins’ Employee Benefits and Executive Compensation Practice Group and ERISA Litigation Practice Group will continue to monitor developments and will post updates on the Employee Benefits and Executive Compensation and Traditional Labor Relations blogs as additional information becomes available.

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