Midterms Preview: What You Need to Know. The 2026 midterm elections will take place on November 3, 2026. When the votes are tallied, the Buzz will provide a full analysis of what the results portend for labor, employment, and immigration policy in the 120th Congress. In the meantime, here are the key details heading into Election Day:

The U.S. House of Representatives

• All 435 members of the U.S. House of Representatives are up for election.
• Republicans currently hold a 220-to-215–seat majority in the House. This includes one independent, Kevin Kiley of California’s 3rd congressional district, who currently caucuses with the Republicans, as well as a vacant Republican seat and a vacant Democratic seat.
• Democrats need to hold their number and flip three Republican seats to gain the 218 needed for a majority in the House.
• If history is a guide, the Republicans will lose their majority in the House. Since 1934, the president’s party has lost an average of 26 House seats in each midterm election. During that timeframe, the only midterm elections in which the president’s party gained seats were in 1934 (President Franklin D. Roosevelt—a gain of 9 seats); in 1998 (President Bill Clinton—a gain of 4 seats); and in 2002 (President George W. Bush—a gain of 8 seats).
• In the 2018 midterm elections, President Trump witnessed a loss of 41 Republican seats.

The U.S. Senate

• In the U.S. Senate, there are 33 seats up for election and 2 seats up for special election. In those special elections, Republican incumbents Jon Husted (OH) and Ashley Moody (FL) are running to complete the Senate terms vacated by Vice President J.D. Vance and Secretary of State Marco Rubio, respectively. Both terms run until 2028. Husted is opposed by former U.S. senator Sherrod Brown (D-OH); Moody is running against former Democratic Florida state representative Angie Nixon.
• Currently, Republicans hold a 53–47 majority in the Senate. This includes independents Bernie Sanders (VT) and Angus King (ME), who caucus with the Democrats.
• Because Vice President J.D. Vance would break any ties in a 50–50 Senate, Democrats need to flip four seats to win the majority.
• Historically, Senate midterm results are less predictable than House results. Senators serve staggered six-year terms, so only about one-third of the chamber is on the ballot in any given federal election year. As a result, Senate races are not viewed as a referendum on the president’s performance in the way House races are.
• In his first term of office, President Trump saw a gain of two Republican seats in the Senate in the 2018 midterm elections.

What’s at Stake?

• Control of the Senate and/or House is the obvious answer, but what does this mean with President Trump in the White House for two more years? In the unlikely event that Republicans are able to hold the majorities in both chambers, they can drive the federal legislative agenda for the next two years and position themselves for the 2028 elections (though as the last two years have demonstrated, passing legislation is always challenging, even with unified control of Congress).

The more likely scenario, however, is that Democrats will win a majority in the House, and potentially the Senate, as well. Democrats will then oversee the various legislative committees and will lean heavily into their oversight authority, knowing that a presidential veto may await most legislation. Even then, Democrats may try to advance legislation to drive the political narrative and serve as litmus tests for 2028.

What’s Next?

• Several weeks remain in the 119th Congress before the 120th convenes. Members of both chambers are scheduled to return to Washington, D.C., on November 9, 2026, for a five-week lame-duck session. The top priority will be funding the federal government beyond December 11, 2026. How lawmakers keep the government open will depend largely on whether power shifts in either chamber in 2027 and on the political leverage that comes with it.

Spooky Season: Senate Pays Tribute to Bats. Prior to absconding from Washington, D.C., for the campaign trail, on September 30, 2026, the U.S. Senate agreed to S. 941, designating this week (October 24, 2026, to October 31, 2026) as “Bat Week.” Bats and Halloween may go together like ghosts and goblins, but Bat Week has nothing to do with the holiday. Rather, the resolution praises bats for “controlling damaging insect pests, pollinating plants that produce fruits and vegetables, dispersing seeds to ensure healthy functioning forests and fields, and saving farmers in the United States more than $3,700,000,000 in pest control every year.” The resolution further warns of the presence of “white-nose syndrome, a fungal disease that has killed millions of bats in North America, has now spread to 41 States and 12 species of hibernating bats.” The resolution concludes with a vow to work to conserve bat species and defeat white-nose syndrome. Clearly, the bat community has hired some good lobbyists.

Next week, the Buzz will be at Ogletree’s Corporate Counsel Exclusive in La Quinta, California, and will be on hiatus. We will return on November 13 with a full analysis of the midterm elections’ impact.

Quick Hits

• New York law requires employers to give workers paid time off to vote when there is not enough time before or after a shift to vote.
• The First Amendment of the U.S. Constitution generally does not prevent private employers from firing or disciplining a worker for political speech that violates a company policy.
• The National Labor Relations Act protects employees’ speech that relates to the terms, conditions, and benefits of employment, which sometimes overlaps with political speech.

Time Off to Vote

The New York Election Law, Section 3-110, governs when a New York employer must give employees paid time off to vote. Employers must provide up to two hours of paid time off to vote, but only if the employee does not have sufficient time outside working hours to vote. The law provides that an employee has sufficient time to vote if there are four consecutive hours between the opening of the polls and the start of the employee’s shift, or between the end of the shift and the closing of the polls.

Polls in New York are open from 6 a.m. to 9 p.m. on Election Day. For a 9 a.m. to 5 p.m. workday, an employee is not entitled to paid time off to vote because the employee has four hours after the end of the shift to vote. However, employees who work a 9 a.m. to 6 p.m. shift, for example, must be given (if requested) one hour paid time off to vote as the pools are open only three hours before and three hours after their shift.

An eligible employee who needs time off to vote must notify the employer at least two, but not more than ten, working days before the election. Employers may want to review any company policies or collective bargaining agreements that may provide additional rights.

Captive Audience Meetings

New York enacted a law in 2023 banning mandatory workplace “captive audience” meetings. Under this law, employers in New York may not fire, discipline, threaten, or retaliate against any employee who refuses to attend employer-sponsored meetings, or listen to or read communications, where the primary purpose of the meeting or communication is to share the employer’s opinion on politicalor religious matters. “Political matters” is defined broadly to include elections, political parties, legislation, regulation, and the decision to join or support a labor organization.

The captive audience meeting law has been challenged as being preempted by the National Labor Relations Act, as it applies to union-related speech, so this is a challenge that may be resolved in litigation.

Legal Activities Law

The New York Legal Activities Law, New York Labor Law Section 201-D, protects employees who engage in certain recreational or political activities outside of working hours. The law covers “matters relating to elections for political office, political parties, legislation, regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization.” This includes running for public office, campaigning for a candidate for public office, and participating in fundraising activities for a candidate, political party, or political advocacy group. While the definitions are relatively narrow under the law, some courts have broadly construed the law to mean most political speech is protected.

Comments on social media often occur while the employee is off duty, so such comments may be legally protected. In some cases, attending rallies or making social media posts promoting a politician or a government policy may be considered a protected recreational or political activity.

Employers can fire or discipline an employee if his or her conduct or speech creates a material conflict with business interests. For example, a conflict of interest may occur when an employee’s conduct reveals trade secrets or causes the employer to lose lucrative contracts, clients, or customers. Case law is not clear on whether an employer would have to prove actual harm or simply the potential for harm caused by an employee’s conduct or speech.

Federal Laws

The free-speech protections under the First Amendment of the U.S. Constitution generally apply to government entities, but not to private employers. Private employers can legally maintain workplace policies prohibiting speech that is offensive, harassing, abusive, threatening, defamatory, or harmful to the employer’s business interests.

At the same time, private employers must comply with the National Labor Relations Act (NLRA), which protects employees’ right to participate in concerted activity related to working conditions, which may include discussing politics. For example, workers criticizing a workplace policy that they feel is unfair or discriminatory based on religious or political beliefs would most likely qualify as protected concerted activity. However, getting into a fistfight over political differences with a coworker is not protected.

On September 23, 2026, the National Labor Relations Board (NLRB) restored a more employer-friendly standard for determining when certain conduct is protected concerted activity. Applying that standard will depend on the specific facts, including whether the employer can identify the misconduct, connect the related discipline to a neutral workplace rule, and show consistent treatment of similar misconduct outside the protected-activity context.

Ogletree Deakins’ Employment Law Practice Group and New York offices will continue to monitor developments and will post updates on the Employee Engagement, Employment Law, Leaves of Absence, and New York blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on state and federal laws around Employer Political and Religious Speech and Employee Lawful Off-Duty Conduct, including in New York. Premium-level subscribers have access to comprehensive law summaries, policies, and templates. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.

Joseph B. Cartafalsa is a shareholder in Ogletree Deakins’ New York 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

• Under a new California law taking effect July 1, 2027, employers may not rely solely on an automated decision system when making discipline or termination decisions.
• When an employer primarily relies on an AI-powered tool output for such decisions, a human must corroborate the result.
• The law further requires employers, after primarily relying on a covered tool to make such decisions, to provide affected employees a written “postuse” notice.

Senate Bill (SB) 947 adds Part 5.5.5 to the California Labor Code, governing “Automated Decision Systems in the Workplace.” The signing of SB 947 comes after Governor Newsom’s 2025 veto of a broader predecessor bill. While SB 947 is narrower, it still imposes significant new process requirements and litigation exposure on employers that use algorithmic tools to manage their workforces. The law takes effect on July 1, 2027, meaning employers need to start preparing for compliance.

Covered Tools

SB 947 applies to “automated decision systems,” broadly defined as “any computational process derived from machine learning, statistical modeling, data analytics, or artificial intelligence that issues simplified output, including a score, classification, or recommendation, that is used to assist or replace human discretionary decisionmaking and materially impacts natural persons.” (Emphasis added). “Artificial intelligence” is defined as “an engineered or machine-based system that varies in its level of autonomy and that can, for explicit or implicit objectives, infer from the input it receives how to generate outputs that can influence physical or virtual environments.” The statute expressly excludes spam filters, firewalls, antivirus software, identity and access management tools, calculators, databases, and datasets.

That definition reaches well beyond generative AI. Productivity scoring tools, attendance analytics, performance trackers, and customer-rating systems could all potentially qualify as a covered automated decision system (ADS) if they produce scores or recommendations that factor into employer personnel decisions. “Employer” also includes public entities, labor contractors, and farm labor contractors.

Human-Review Requirement and Prohibited Uses

The core of SB 947 is a two-tier standard for discipline and termination. First, the law expressly prohibits employers from “rely[ing] solely on an ADS” in making a “disciplinary or termination decision.” (Emphasis added). Second, if an employer “primarily relies” on ADS output, the employer must “direct a human to corroborate the decision using the data that was collected or used to produce the ADS output or other relevant corroborating or supporting information.” (Emphasis added). Such information includes supervisory evaluations, personnel files, employee work product, peer reviews, or witness interviews (which may include relevant online customer reviews).

An employer that “primarily relies” on the output of a covered ADS to make a disciplinary or termination decision must direct a human to corroborate the decision using the same information as the ADS.

• If the output cannot be corroborated, or the reviewer concludes it is “inaccurate, incomplete, or misleading,” the employer may not use it to make a disciplinary or termination decision. Notably, the statute does not define “primarily relies,” a gap that will likely be tested in litigation.
• Upon an employee’s request, an employer must provide a “meaningful, objective description of” the data used by the ADS.

The law further expressly prohibits the use of ADS to “prevent compliance” with federal, state, or local laws, or with other occupational health and safety, employment, or civil rights laws and regulations (ostensibly the California Fair Employment and Housing Act (FEHA)). Further, ADS cannot be used to “predict or take adverse action against” workers for exercising their legal rights, including those under state and federal labor law (ostensibly the National Labor Relations Act (NLRA)).

Employee Data Access Rights

When an employer has “primarily used an ADS to make a disciplinary or termination decision,” employees have the right to request, and the employer must provide, “a meaningful, objective description of the employee’s own data” used by the system. Any description must anonymize the personal information of customers, coworkers, and other individuals.

‘Postuse’ Notice of ADS Use

SB 947 further adds stringent notice requirements when an employer primarily relies on an ADS to make (i.e., “postuse”) decisions regarding discipline and termination of employment. Employers must provide a written postuse notice when informing the employee of the decision. The notice must be a plain-language, stand-alone communication, delivered in the language of routine workplace communications, and delivered via a simple method such as email or hyperlink. The notice must state:

1. that the employer primarily relied on an ADS,
2. that a human reviewed the decision and corroborated the output,
3. contact information for a person who can answer questions and explain the employee’s data-access right, and
4. that retaliation for exercising rights under the law is prohibited.

Notably, the notice obligation is tied to discipline and termination decisions in which an ADS was the primary basis, not to every employment decision involving an ADS.

Enforcement and Penalties

SB 947 does not create a standalone private right of action. Instead, the labor commissioner may investigate, order temporary relief, issue citations, and file civil actions. Violators face a $500 civil penalty per violation. Additionally, public prosecutors (i.e., the California attorney general, local district attorneys, city attorneys, county counsels, or any other city or county prosecutor) may also enforce the law through civil actions. They may seek injunctive relief, punitive damages, and reasonable attorneys’ fees and costs. Since the law sits in the Labor Code and carries civil penalties, employers may face attempts to enforce claims under California’s Private Attorneys General Act (PAGA), which allows employees to enforce labor code violations on their own behalf and on behalf of other employees.

The law establishes a burden-shifting framework for proving violations of the employer requirements. Once it is shown that an ADS was used to make a disciplinary or termination decision, the employer must show that it “did not primarily rely” on an ADS or that the employer fully complied with the human-review and notice requirements.

The law explicitly exempts employers and employees covered by a collective bargaining agreement (CBA) if the agreement:

1. “explicitly waives” the new requirements “in clear and unambiguous terms,”
2. “expressly provides for the wages or earnings, working conditions, and other terms and conditions of work,” and
3. protects against “algorithmic discrimination.”

Interplay With Other Laws

SB 947 comes as California has moved to the forefront in regulating AI and its use in many contexts, including workplaces, amid federal inaction. The law was one of several signed by Governor Newsom in the latest legislative session, including laws restricting the use of AI-driven workplace monitoring tools to track employees’ behavior and predict their emotional state. Additionally, Governor Newsom recently signed two more executive orders related to AI, including one aimed at exploring whether to require a “kill switch” for frontier AI models.

This latest wave of actions follows California’s adoption of regulations regarding AI and ADS in the workplace, through FEHA in the antidiscrimination context, and privacy mandates such as the California Consumer Privacy Act (CCPA). Beyond California, Colorado, Connecticut, Illinois, New York City, and Texas all have laws that restrict the use of automated decision-making tools for significant or consequential employment decisions, such as hiring, promotion, and termination.

Compliance with SB 947’s notice requirements satisfies substantially similar ADS notice provisions under other state laws. However, that safe harbor does not extend to warehouse quotas or other automated working-condition standards, nor does it exempt CCPA-covered businesses from the California Privacy Protection Agency’s automated decision-making regulations.

Next Steps

With the July 1, 2027, effective date approaching, employers may want to consider inventorying potentially covered ADS tools used, particularly any system that generates scores or rankings or flags actions or makes recommendations regarding discipline or termination, including vendor products embedded in human resources platforms, and assess how such tools are used and whether human review is part of the process of decision-making. Employers may also want to prepare postuse notice templates, establish processes for handling employee information requests, and train managers on the new requirements under SB 947, as well as other state laws and regulations.

Ogletree Deakins’ Artificial Intelligence and Innovation Practice Group will continue to monitor developments and will provide updates on the Artificial Intelligence and Innovation, California, and Cybersecurity and Privacy blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on California state laws, including California’s updated laws on Automated Employment Decisions. Premium-level subscribers have access to comprehensive law summaries, policies, and templates. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.

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Quick Hits

• In Elshabrowy v. Ali Awad Law, P.C., a federal district court recently adopted a magistrate judge’s conclusion that sexual harassment under the NYSHRL and NYCHRL includes unwelcome verbal or physical behavior based on a person’s gender, even if the conduct is not sexual or lewd in nature.
• Because the employee plausibly alleged a gender-based hostile work environment, the case qualified as a “sexual harassment dispute” under the EFAA, and the court denied the employer’s motion to compel arbitration of the entire case.
• Rather than treating sexual harassment as a narrow subset of gender discrimination, the decision suggests that many gender discrimination and hostile work environment claims involving verbal or physical conduct may be treated as sexual harassment claims that are exempt from arbitration.

Under the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), an employer cannot enforce an arbitration agreement in a case relating to a sexual assault dispute or sexual harassment dispute. The EFAA defines a “sexual harassment dispute” as a dispute relating to conduct that is alleged to constitute sexual harassment under applicable federal, tribal, or state law. The NYSHRL and the NYCHRL both prohibit gender discrimination, but neither statute expressly defines “sexual harassment” or says when gender-based discrimination rises to the level of sexual harassment.

Background on the Case

A Muslim woman of Arab descent worked remotely from her home in Queens, New York, for a personal injury law firm and an affiliated company from August 2024 until her termination of employment in October 2025. She alleged that after she began wearing a hijab to work in January 2025, a company executive expressed discomfort toward her hijab, stalled her projects, interfered with her administrative access at work, yelled at her, and called her and her team “incompetent.” After she told the CEO, she said the CEO called her “emotional” and suggested she needed to accept typical male “aggressive” behavior from the executive.

After she raised her concerns again, the executive allegedly cursed at her, told her she was “embarrassing” herself, and said, “You’re not the most intelligent person in the room”—comments she alleged he did not direct toward male employees. She also alleged that she was excluded from company-organized carpools to Friday prayers that were routinely offered to Muslim men. She filed a formal complaint with human resources in June 2025, alleging repeated verbal abuse and harassment. She alleged that HR did not respond to or investigate her complaint, and the employer terminated her employment several months later.

In December 2025, the former employee sued in New York State Supreme Court, Queens County, alleging gender and religious discrimination under the NYCHRL and NYSHRL, as well as state law tort claims of defamation and intentional infliction of emotional distress. The employer removed the case to federal court and moved to compel arbitration under the employee’s employment agreement. The employee argued that the EFAA barred arbitration because she alleged sexual harassment under state and local law. The employer responded that, even if her allegations were true, they did not plausibly allege sexual harassment under either law.

The Magistrate Judge’s Recommendation

The magistrate judge assumed, without deciding, that the arbitration agreement would otherwise be enforceable and focused on whether the employee had plausibly alleged sexual harassment—the same plausibility standard used to decide a motion to dismiss.

The magistrate judge relied on guidance from the New York City Commission on Human Rights, which defines sexual harassment as “unwelcome verbal or physical behavior based on a person’s gender” and does not require that the conduct be sexual in nature. The court pointed to the Second Circuit’s long-standing recognition that a hostile work environment claim requires neither “sex-specific and derogatory terms” nor evidence that “sexual desire” motivated the harassment. If sexual harassment need not be sexual under Title VII of the Civil Rights Act of 1964’s more demanding framework, the court reasoned, it need not be sexual under the more liberally construed NYSHRL and NYCHRL.

The magistrate judge found the employee’s allegations plausibly alleged “unwelcome gender-based conduct” that subjected her to inferior “terms, conditions, or privileges of employment.” Therefore, the case involved a “sexual harassment dispute” under the EFAA, and the magistrate judge recommended that the motion to compel arbitration be denied.

The magistrate judge cautioned that not every allegation of gender-based mistreatment amounts to sexual harassment, even under the broader sexual harassment definition. For example, the alleged exclusion from the prayer carpools and the alleged interference with the plaintiff’s work were neither physical nor verbal and would not, standing alone, constitute sexual harassment.

Neither party filed objections to the report and recommendation. On October 20, 2026, U.S. District Judge Hector Gonzalez reviewed the recommendation for clear error, adopted it as “well-reasoned,” and denied the employer’s motion to compel arbitration.

Next Steps

This decision illustrates that sexual harassment is not limited to sexual advances, sexual comments, or lewd conduct. Instead, gender-based hostile work environment claims involving verbal or physical conduct—such as demeaning comments, insults, yelling, or gender stereotyping—may qualify as sexual harassment under the NYSHRL and NYCHRL. In practice, this may turn the traditional understanding on its head: rather than sexual harassment being a narrow subset of gender discrimination, many general gender discrimination claims may now be viewed as sexual harassment claims.

Despite the ruling in Elshabrowy, courts in New York remain divided on this issue. Employers with operations in New York may wish to review their arbitration agreements and dispute resolution strategies with the understanding that gender-based hostile work environment claims may not be arbitrable. Employers may wish to promptly investigate harassment complaints and train managers that demeaning, gender-based comments—even those with no sexual content—may be treated as sexual harassment under state and local law.

Ogletree Deakins’ Arbitration and Alternative Dispute Resolution Practice Group and Diversity, Equity, and Inclusion Compliance Practice Group will continue to monitor developments and will post updates on the Arbitration and Alternative Dispute Resolution, Diversity, Equity, and Inclusion Compliance, Employment Law, and New York blogs as additional information becomes available.

Leslie A. Lajewski is a shareholder in Ogletree Deakins’ Morristown office.

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

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Quick Hits

• On October 28, 2026, the EEOC voted 2-to-1 to rescind its 2012 enforcement guidance related to using arrest and conviction records in employment decisions.
• The Commission announced the rescission on October 29, 2026, with an immediate effective date.
• The 2012 guidance indicated that employers’ use of information on arrest and conviction records triggered obligations under Title VII of the Civil Rights Act of 1964 and could lead to liability—under both disparate treatment and disparate impact theories.

EEOC Chair Andrea Lucas stated that the vote to rescind “reaffirms the agency’s commitment to enforce Title VII consistent with the Constitution and the limits Congress placed on the EEOC’s authority.” According to Lucas, “Rescinding this guidance does not give employers license to engage in unlawful discrimination—Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination. The EEOC will continue to vigorously enforce these protections in accordance with the law.”

The EEOC vote follows the EEOC’s October 6, 2026, notice to the U.S. Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) of a draft final rule to rescind the April 2012 guidance, “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act.” Since 2025, the federal government has pivoted away from enforcing employment laws based on disparate impact theories.

Expected Impact of the Guidance Rescission

The EEOC will continue to pursue enforcement of cases involving disparate treatment, but not disparate impact, in the use of criminal background checks in employment. Plaintiffs will continue to bring private lawsuits alleging Title VII discrimination based on both disparate treatment and disparate impact claims. Private lawsuits may be impacted as employers argue the rescission undercuts a Title VII disparate impact claim, while private plaintiffs argue that the rescission does not impact existing Title VII disparate impact case law.

The rescission is not expected to directly impact either the federal Fair Credit Reporting Act (FCRA) or state or local laws governing the use of criminal history information. The FCRA imposes procedural and substantive requirements on employers using background checks obtained from third-party vendors, and there are state and local background check laws governing the use of criminal history information, which will continue to be enforced by agencies other than the EEOC and/or private plaintiffs.

Employers may wish to review their written policies and update their manager trainings to ensure compliance with the federal FCRA, as well as the patchwork of state and local background check laws.

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

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

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Quick Hits

• President Trump signed Executive Order 14426, “Accelerating Access to Veterans’ Benefits and Employment Opportunities,” on September 8, 2026, to address the transfer of records between DOW and the VA.
• The executive order sets a series of deadlines for the DOW and the VA to modernize both the technology and the policies governing records sharing.
• The executive order also directs changes to help veterans move more quickly into employment or further training.

The Problem the EO Is Trying to Solve

When military records move slowly, everything downstream moves slowly with them. Healthcare coverage stalls. Benefits processing and payments are delayed. Education opportunities and job training become harder to access. EO 14426 frames this not as a minor administrative inconvenience but as a structural barrier that actively hampers veterans’ transition to civilian life.

What the Order Requires

The EO sets a series of deadlines for DOW and the VA to modernize both the technology and the policies governing records sharing:

Within thirty days and at all times thereafter, DOW must begin sharing a service member’s official military personnel file, health records, and service treatment records with the VA immediately upon that individual’s discharge or release from service. This is the most time-sensitive requirement in the order and appears designed to stop the problem before it starts, rather than fixing it after the fact.

Within 120 days, the secretaries of War and Veterans Affairs, in consultation with the U.S. Department of Health and Human Services and the Office of Management and Budget, must review and modify all relevant technology contracts to ensure their systems communicate with each other, addressing the interoperability issues that have historically been at the root of these delays.

Within 180 days, two things must happen:

• DOW and VA must establish updated technology and policy guidance to ensure the permanent, prospective, and ongoing sharing of all official military personnel files and service treatment records are shared from the moment an individual enters service until he or she no longer requires VA benefits, not just at the point of discharge.
• The two agencies must also build and deploy tools that consolidate the application and access process for earned benefits, including job training and opportunities offered by the U.S. Department of Labor (DOL), into a single, comprehensive source.

A Parallel Push on Employment

The order doesn’t stop at records. It also directs changes to help veterans move more quickly into employment or further training. Within 180 days, the secretary of War, in consultation with the secretaries of Labor and Veterans Affairs, must update the Transition Assistance Program and related workforce programs so that every separating service member is, to the maximum extent practicable and applicable, either:

1. connected to specific open jobs matching the individual’s skills and interests; or
2. enrolled in career and technical education, an eligible DOL-funded employment or training program, or a registered apprenticeship.

Separating service members must also be connected with veterans’ representatives, whether federal, state, or local, who can help them apply for healthcare, disability, home loan, job placement, or education benefits.

Reading Between the Lines

This order fits into a broader, ongoing policy focus on veterans and transitioning service members. At its core, it targets a specific and well-documented failure point: outdated and incompatible software systems that create delays in getting veterans the benefits they’ve earned. By forcing DOW and the VA to fix interoperability and share records immediately at the point of discharge, rather than relying on manual requests after the fact, the order attempts to close a gap that has affected veterans’ healthcare, financial stability, and job prospects for years.

In our view, it also signals an intent to make the transition out of the military less passive. Rather than simply providing information about available benefits and programs, the order pushes toward active connection: to specific jobs, to specific training programs, and to specific people who can help navigate the system.

The open question, as with many executive orders of this kind, is implementation. Aggressive deadlines and interoperability mandates are only as effective as the funding and staffing behind them. Whether the U.S. Congress and the agencies involved allocate sufficient resources to build and maintain these new systems will likely determine whether this order meaningfully shortens the gap between military service and civilian benefits or becomes another well-intentioned mandate that outpaces its own execution.

Ogletree Deakins’ Military Workforce Practice Group will continue to monitor developments and provide updates on the Military Workforce blog.

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Quick Hits

• In Hall v. Coal Bed Services, Inc., the Eleventh Circuit reversed a district court’s ruling that discharged laborers had failed to present sufficient evidence to allow their claims of race discrimination and retaliation to proceed to a jury trial.
• The Eleventh Circuit held that differential treatment of a coworker can be evidence of discrimination, even when the coworker had a longer tenure and a different job.
• The decision underscores the court’s continued embrace of a flexible, holistic approach when evaluating circumstantial evidence of discrimination.

Legal Background

Summary judgment is often an employer’s most important tool for resolving discrimination claims before trial. When an employer moves for summary judgment, the court will analyze whether the record evidence would allow a jury to find in the employee’s favor. Because a plaintiff bringing discrimination claims has to prove that the employer had a discriminatory motive, the central question at summary judgment is what evidence would allow a jury to find that the employer had a discriminatory motive.

The McDonnell Douglas burden-shifting framework has long been the standard for analyzing employment discrimination claims based on circumstantial evidence. Under this framework, a plaintiff may establish a rebuttable presumption of discrimination by showing that a “similarly situated” comparator outside the protected class received more favorable treatment. The Eleventh Circuit has traditionally applied strict criteria for comparators, requiring them to be similarly situated “in all material respects.”

However, the Eleventh Circuit has moved toward a more flexible approach. The court articulated what has become known as the “convincing mosaic” standard, an alternative path for plaintiffs to survive summary judgment without a strict comparator. Under this approach, courts analyze the evidence holistically, and circumstantial evidence can be sufficient if it allows a reasonable factfinder to infer intentional discrimination. However, courts and litigants are still left wondering what evidence counts as a “tile” in this mosaic and how many tiles are needed.

Factual Background

In Hall v. Coal Bed Services, Inc., two Black employees of a construction subsidiary claimed that throughout their employment their supervisors consistently favored their White coworkers. They testified that their supervisors gave them “dirtier” and more difficult assignments than their White coworkers, only addressed White employees by name, and did not offer Black employees the same opportunities for skill development and advancement.

About a month after they complained about this treatment to a supervisor, they were selected to take a mandatory drug test. The two plaintiffs refused and were fired by that supervisor. A White employee also refused and walked off the site before being fired. The plaintiffs were paid only for the hours they worked that day, but the White employee was paid for his full shift. And although all three later asked to be reinstated, only the White employee was allowed back. The company then replaced the two Black employees with two White laborers, one of whom it had previously fired for failing a drug test.

The Eleventh Circuit’s Decision

The Eleventh Circuit reversed the district court’s grant of summary judgment on both the discrimination and retaliation claims. The court applied the “convincing mosaic” approach and held that the evidence as a whole supported an inference of intentional racial discrimination. However, two pieces of evidence offer particular insight into how courts may weigh evidence going forward.

First, the court found the company’s “strikingly different treatment” of the White employee to be “highly significant” as one tile in the mosaic. The company argued that the White employee had more experience, longer tenure, and different job duties as a heavy equipment operator; and the court assumed without finding that he was not a proper comparator. Nevertheless, the Eleventh Circuit held that he did not need to be similarly situated in all material respects for his differential treatment to contribute to a convincing mosaic.

Next, the court heavily scrutinized the company’s position statement to the U.S. Equal Employment Opportunity Commission (EEOC). The company’s position statement characterized the drug test as random. During discovery, however, witnesses testified that the plaintiffs were targeted because a supervisor had reported observing the plaintiffs smoking marijuana on the job. The court found that, when viewed in the light most favorable to the nonmoving plaintiffs, evidence that the company did not mention such a report in its position statement created a dispute of fact as to whether it occurred. Going one step further, the court found that the company’s differing explanations for the drug test evidenced the kind of inconsistencies that suggest pretext, contributing another “tile” into the convincing mosaic of discrimination.

Combined with plaintiffs’ deposition testimony regarding differential treatment in the workplace, the Eleventh Circuit found that plaintiffs had presented sufficient evidence to create a convincing mosaic of discrimination, to survive summary judgment, and to have their day before a jury.

Key Takeaways for Employers

Differential treatment matters—even when employees are not formal comparators. This case reinforces that evidence of disparate treatment can be powerful even when the favored employee does not qualify as a “similarly situated” comparator. Evidence that employees outside the plaintiff’s protected class received favorable work assignments or lighter consequences for identical misconduct can become a tile in the convincing mosaic—regardless of formal job titles or tenure differences. Before making termination decisions, HR may want to review how similar conduct by other employees, regardless of title or tenure, was handled.

Investigating thoroughly before responding to the EEOC is essential.The court questioned the company’s explanation for the drug test because the company did not include it in its position statement. Employers may want to investigate thoroughly before responding to a charge of discrimination to ensure that they have included the key facts that will be relied upon should the matter proceed to litigation.

Consistency is critical in EEOC position statements. The court emphasized that the company’s shifting explanations for the drug test—described as “random” to the EEOC but later characterized as a response to a specific drug-use report—weighed heavily against the company. Employers may want to ensure that explanations provided during administrative proceedings are accurate and consistent with positions taken in litigation.

Courts will continue evaluating discrimination claims holistically. The Eleventh Circuit, which covers Alabama, Florida, and Georgia, continues to move away from rigid application of McDonnell Douglas in favor of a totality-of-the-circumstances approach. No single piece of evidence may be dispositive, but, as courts have put it, the cumulative weight of “suspicious timing, ambiguous statements, and other bits and pieces” may be enough for a reasonable jury to infer discriminatory intent.

Hall serves as a reminder that the Eleventh Circuit is committed to a flexible, evidence-based approach to employment discrimination cases at summary judgment. Employers defending these claims should expect courts to consider the full mosaic of evidence, including evidence, such as the treatment of employees who are not formal comparators, that might have carried little weight under McDonnell Douglas. Likewise, employers may want to ensure their explanations for adverse actions are thorough, accurate, and consistent from the earliest administrative stage through litigation.

Ogletree Deakins’ Employment Law Practice Group will continue to monitor developments and will post updates on the Employment Law and State Developments blogs as additional information becomes available.

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Quick Hits

• Oregon OSHA has finalized a workplace violence prevention rule that expressly covers home health agencies and home hospice programs in addition to hospitals and ambulatory surgical centers.
• The rule defines “workplace violence” to include threats, harassment, and intimidating behavior not just physical assault.
• Oregon OSHA’s Discrimination Complaint Rule (OAR 437-001-0295) now includes reporting workplace violence incidents.
• Covered employers must record incidents on the Health Care Workplace Violence Incident Log (or equivalent) in addition to existing general injury and illness recordkeeping.
• Covered employers now must consult with their safety committee (or employees during their safety meetings, if applicable) to create investigative and reporting procedures and to conduct periodic safety assessments, annual review of their workplace violence prevention plan, and training on workplace prevention and protection.

On October 22, 2026, Oregon OSHA announced that it had finalized its new workplace violence prevention rules for Oregon healthcare employers. Specifically, Oregon OSHA has adopted an entirely new rule, OAR 437-002-0150, which requires that hospitals, ambulatory surgical centers, home health agencies and home hospice programs have a workplace violence prevention and protection program. Healthcare employers covered by this new rule must, among other things, develop a workplace violence prevention and protection plan; provide regular training; and conduct regular assessments and measure the frequency of assaults.

Although Oregon previously had workplace violence prevention requirements that applied to hospitals and ambulatory surgical centers, this new rule greatly expands the coverage of the requirements by expressly covering home health agencies and home hospice programs, and also expands the definition of “workplace violence” to include “any act or threat of physical violence, assault, homicide, harassment, or intimidation or any other threatening behavior that occurs in the workplace ….” This expansion means compliant prevention plans must address a wider range of conduct than physical attacks alone.

In addition to enacting a new rule, Oregon OSHA is also amending its existing discrimination complaint rule, OAR 437-001-0295, to make clear that covered employees may file a discrimination complaint if they believe they have been discriminated against for reporting an incident of workplace violence.

Oregon OSHA is also amending its existing rule regarding recordkeeping for healthcare setting assaults, OAR 437-001-0706, to expressly include home health care and home hospice employers to the scope of the rule.

One important note is that this new rule adds to Oregon OSHA’s existing safety committee rules for healthcare employers, which will now have to consult with their safety committee (or with employees during safety meetings, where applicable), to create procedures for investigating incidents of workplace violence, to collect and report incidents of workplace violence, to conduct periodic security and safety assessments, to review annually their workplace violence prevention plan, and to provide workplace violence prevention and protection training. The existing safety committee rule is not being amended; instead, the workplace violence rule simply adds these requirements, meaning covered healthcare employers must take into account the new rule when administering their safety committees (or safety meetings, where applicable).

Oregon OSHA stated in its summary of the comments it received on the proposed rule that it will develop supplemental resources materials to assist employers in understanding the requirements of the standard. However, as of this writing, Oregon OSHA has not yet posted any such new supplemental resources.

Ogletree Deakins’ Portland (OR) office and Workplace Safety and Health Practice Group will continue to monitor developments and provide updates on the Healthcare, Oregon, Workplace Safety and Health, and Workplace Violence Prevention blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on workplace violence prevention laws, including those specific to healthcare employers. Premium-level subscribers have access to comprehensive law summaries, policies, and templates. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.

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Quick Hits

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

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

Background

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

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

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

What Changed—and What Did Not

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

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

How the Public Comments Shaped the Change

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

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

Why It Matters

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

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

Next Steps

Employers may want to consider the following questions:

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

Developments to watch:

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

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

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

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Quick Hits

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

Legal Framework

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

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

Background

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

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

The Court of Appeals’ Analysis

The Statutory Damages Question

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

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

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

The Dissent

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

Key Takeaways for Employers

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

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

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