After the employment termination, employers may wish to continue monitoring for potential workplace safety threats and have strategic communication and crisis-response plans in place to address them.

Quick Hits

• A pre-termination risk assessment and a carefully planned employment termination meeting can protect the safety and dignity of everyone involved.
• Prompt revocation of a departing employee’s system and building access, along with a coordinated return of company property, can help prevent security vulnerabilities.
• Thoughtful communication of potential threats, thorough documentation of the offboarding process, and the use of threat-assessment teams or protective measures play a critical role in addressing risk in high-threat employment terminations.

Conducting a Pre-Termination Risk Assessment

Before initiating any employment termination meeting, employers may want to conduct a thorough risk assessment. This means reviewing the employee’s personnel file, disciplinary history, and any prior complaints or incidents involving threats, intimidation, or volatile behavior. Human resources, legal counsel, and, where appropriate, security professionals would all collaborate to evaluate whether the termination event presents an elevated safety risk. Factors such as the employee’s known temperament, access to sensitive areas or systems, history of grievances, and any prior references to workplace violence or retaliation would all be considered as part of this evaluative process. This advance planning allows an organization to tailor the offboarding process to the individual’s specific risk profile and put appropriate safeguards in place before the termination conversation even begins.

Planning the Termination Meeting

The employment termination meeting itself should ideally be conducted in a way that minimizes the potential for confrontation. First, consider selecting a private, neutral location for the meeting, such as one near an exit and away from the general workforce. Second, schedule the meeting at a time when the employee can leave the premises with minimal audience, such as late in the day or at the end of a shift. Third, at least two company representatives should be present, typically a manager and a human resources professional. In higher-risk situations, consider having security personnel nearby but not visibly present in the room, as an overt security presence can unnecessarily escalate tensions. If an organization does not have security personnel, local police can be alerted to the potential for a safety event and often will agree to keep a squad car in the vicinity. Finally, consider scripting the conversation to be brief, professional, and compassionate. The decision should be clearly communicated, and relevant documentation, such as a termination-of-employment letter, can be provided at this time (perhaps with a follow-up email or mail transmittal). Company representatives will want to avoid engaging in debates about the merits of the employment termination, as this may lead to an escalation of the conversation.

Access Revocation

One of the critical steps in the offboarding process is the prompt revocation of the discharged employee’s access to company systems, facilities, and information. This should be coordinated in advance with IT personnel so it can be executed simultaneously with, or immediately following, the employment termination meeting. Access badges, key cards, building keys, and parking credentials should be collected during the meeting if possible. IT will coordinate disabling the employee’s login credentials, email accounts, remote access capabilities, and access to cloud-based platforms. IT can typically also disable key cards and/or access badges remotely if the employee does not have those items available to hand in at the time of the meeting. If the employee had access to proprietary or confidential information, IT will likely conduct a forensic review to determine whether any data has been improperly downloaded or transferred. The speed and thoroughness of these steps are essential, as delays in revoking access can create unnecessary vulnerabilities. These unwanted delays may also complicate potential breach-of-confidentiality claims or an entity’s enforcement of related restrictive covenants, should it later decide to pursue such claims.

Managing the Return of Physical Company Property

It is standard practice for employers to have clear, consistent processes for retrieving company property from discharged employees. This property includes laptops, mobile devices, identification badges, uniforms, tools, car keys, and any other company-issued items. Using the pre-termination risk assessment as a guide, employers may want to arrange for the return of property during the employment termination meeting itself. If the employee needs to retrieve personal belongings from a workspace or locker room, it is recommended that a manager or security representative accompany the employee. From a safety perspective, it is not advisable for a discharged employee to have unattended access to the premises. In situations involving a higher safety risk, it is likely preferable to pack and ship the employee’s personal items rather than allow the employee to return to the workspace. Similarly, the entity will need to make shipping or drop-off arrangements for any company property that a discharged employee has at home or off-site.

Communicating Potential Threats to the Workforce

One of the more challenging aspects of a high-risk employment termination is deciding what, when, and how to communicate with the remaining workforce. Employers will need to strike a delicate balance between transparency and discretion. On the one hand, employees have a legitimate need to know about potential safety threats and can be part of safety solutions if properly informed of a situation (e.g., not holding a secure door open for a recently discharged employee). On the other hand, employers may wish to avoid escalating a situation or causing unnecessary alarm.

When a credible threat has been identified, whether through statements by the discharged employee, behavioral warning signs, or information from law enforcement, the organization will want to promptly notify relevant personnel. The scope of the communication should be guided by the nature and specificity of the threat. For example, a general, nonspecific concern may warrant a reminder to all staff about existing security protocols, such as reporting unfamiliar visitors, keeping exterior doors locked, and knowing the location of emergency exits. A more specific or imminent threat may require direct notification to targeted individuals, coordination with law enforcement, and heightened physical security measures.

Communications should be factual, measured, and focused on what employees need to do to be aware and stay safe. For example, a company-wide communication might state that a former employee is no longer authorized to be on the premises and that any sightings should be reported immediately to security. Ideally, front desk staff, receptionists, and building security will be provided with the individual’s name and photograph so they can identify and intercept any unauthorized attempts to enter the premises.

Perhaps most important is reminding employees of their ability and permission to call 911 in emergency situations. Often, employees feel they need to ask for permission to call emergency services while at work, or that only managers are allowed to do so. Critical response time can be lost if employees do not understand their role in contacting emergency services (and their right to do so) in the event of an imminent threat.

Leveraging Threat-Assessment Teams

Larger organizations may want to consider establishing or consulting a threat-assessment team. These multidisciplinary teams, typically composed of representatives from human resources, legal, security, and law enforcement, as well as mental health professionals, are trained to evaluate the likelihood and severity of potential workplace violence. A threat-assessment team can help determine whether a discharged employee poses a genuine danger and can recommend specific, proportionate responses. For smaller organizations that lack the resources to maintain an internal team, outside consultants and local law enforcement agencies often provide threat-assessment services.

Utilizing Protective Measures When Warranted

In cases where a discharged employee has made explicit threats or has a documented history of violent behavior, employers are encouraged to promptly pursue protective measures. Depending on the jurisdiction, this may include seeking a restraining order on behalf of the company and its employees. Employers may also consider coordinating with local law enforcement to ensure that law enforcement is aware of situations and can respond swiftly if needed. Physical security enhancements, such as increased security patrols, temporary surveillance measures, or modifications to building access points, may also be appropriate on a case-by-case basis.

Relatedly, employers might consider proactively collaborating with local law enforcement so that, if there is a workplace safety event (whether a fire, inclement weather, or a threat of violence), first responders are familiar with the entity’s physical premises, emergency contacts, and leadership personnel. Local law enforcement teams will likely be able to respond more quickly and effectively if these relationships are already in place.

Documenting Everything

Throughout the employment termination/offboarding process, meticulous documentation is important. It is best practice for employers to record the details of the employment termination meeting, including what was said and how the employee responded. Employers may also consider documenting the revocation of physical and electronic access, the return of company property, and any post-termination communications with the former employee. If a threat assessment was conducted, it is recommended that employers preserve the analysis and conclusions. If communications were made to the workforce about a potential threat, employers are encouraged to keep copies of those communications. This documentation serves multiple purposes: it demonstrates that the employer acted reasonably and in good faith, it supports any future legal proceedings, and it provides a factual record that can be referenced if the situation evolves.

Providing Workforce Support

An employment termination, particularly a high-profile or contentious one, can be unsettling for the employees who remain in the workforce. Employers should be prepared to address concerns and provide support. This may include reminding employees of available employee assistance program (EAP) resources, holding a brief team meeting to address questions without divulging confidential details about the employee and the specifics of the employment termination, and reinforcing the organization’s commitment to a safe workplace. Encouraging employees to report any concerning contacts or communications from the former employee, without fostering a climate of fear, is also an important part of the post-termination safety strategy.

Key Takeaways

Offboarding a discharged employee is far more than an administrative exercise. When approached with careful planning, clear communication, and a commitment to safety, the process protects the organization, its people, and even the departing employee. By conducting pre-termination risk assessments, promptly revoking access, communicating threats responsibly, and documenting each step, employers can navigate this difficult terrain with confidence and professionalism.

Ogletree Deakins’ Workplace Violence Prevention Practice Group will continue to monitor developments affecting workplace safety and will provide updates on the Employment Law, Workplace Safety and Health, and Workplace Violence Prevention blogs as additional information becomes available.

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Quick Hits

• Employers must comply with obligations related to: (i) the prevention of discrimination and violence against women, (ii) NOM-035-STPS-2018 Psychosocial Risk Factors, and (iii) the Chair Law (“Ley Silla”).
• The government has increased workplace investigations, raising the importance of ensuring that employers are in compliance with employment-related laws. 

Key Obligations

Prevention of discrimination and violence against women. As a result of several amendments to guarantee an environment free of discrimination and violence against women, on January 15, 2026, a decree was published in the Official Gazette of the Federation (Diario Oficial de la Federación (DOF)) reforming several laws, including the Federal Labor Law. Employers are obligated to:

• take actions to prevent and ensure that work environments are free from discrimination and violence;
• guarantee substantive equality between women and men;
• provide periodic training for employees on the prevention of discrimination and violence against women in the workplace; and
• obtain evidence for the above-mentioned trainings modules.

Protocol to prevent gender-based discrimination and address cases of violence, harassment, or sexual harassment, as well as to eradicate forced and child labor. Per Article 132 of the Federal Labor Law, employers must implement a protocol to prevent gender-based discrimination, address violence, harassment, and sexual harassment, and eradicate forced and child labor. This is a statutory duty, and its absence may result in sanctions during workplace inspections.

The protocol ideally includes:

• a zero-tolerance statement covering discrimination, violence, harassment, sexual harassment, forced labor, and child labor;
• definitions of all prohibited conduct;
• confidential complaint channels (red line phones);
• an objective and independent investigation procedure; and
• anti-retaliation protections.

NOM-035-STPS-2018: Psychosocial Risks. This Official Mexican Standard (Normas Oficiales Mexicanas (NOM)) seeks to identify, analyze, and prevent psychosocial risks and promote a favorable organizational environment. Employers are required to:

• implement a psychosocial risk policy in place and document its renewals annually;
• incorporate and adjust in the psychosocial risk policy the administration and distribution of the workweek of the employees, per the workweek reduction amendment;
• update the psychosocial risk policy in order to incorporate matters related to the prevention of discrimination and violence against women in the workplace; and
• conduct psychosocial risk evaluations every two years.

Chair Law (“Ley Silla”). Obligations related to this amendment have been mandatory for employers since June 2025. This amendment seeks to recognize the right of employees to have adequate seating during their work shift if their activities allow it. The following are the most relevant obligations:

• providing enough chairs with backrests for employees if their activities allow it;
• determining periodic rest breaks; and
• updating internal work regulations to incorporate seating and rest breaks.

Ogletree Deakins’ Mexico City office will continue to monitor developments related to the workweek reduction, anti-discrimination protocols, psychosocial risk compliance, and the Chair Law, and will provide updates on the Cross-Border, Mexico, Wage and Hour, Workplace Safety and Health, and Workplace Violence Prevention blogs as enforcement trends evolve.

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

• The NJDOL has issued long-awaited guidance/FAQs on recent NJFLA amendments, which became effective on July 17, 2026.
• The guidance clarifies that employees receiving TDI or FLI benefits, whether through the state or a private insurance plan, are entitled to job protection for as long as they receive those benefits while on an otherwise unpaid leave of absence.
• The job protection is separate from reinstatement rights already provided under the NJFLA and FMLA, and there are no minimum employer size requirements or work history requirements.

Job Protection for Employees Receiving TDI/FLI Benefits

On January 17, 2026, then-Governor Phil Murphy signed into law amendments to the NJFLA. Under the new NJDOL guidance, employees who receive TDI or FLI benefits are entitled to up to twenty-six weeks of job-protected leave based solely on their receipt of those benefits, regardless of whether their leave is separately covered by the NJFLA or FMLA.

Specifically, employees receiving TDI or FLI benefits (whether through the state or a private insurance plan) must be reinstated to their jobs when their leaves end, or to equivalent jobs with the same pay, benefits, seniority, and other terms of employment. There are no minimum employer size requirements or work history requirements to receive this protection. Instead, it depends only on whether the employee qualifies for TDI or FLI benefits, which is based on recent earnings.

Job Protection Applies to Leave Commenced Prior to Effective Date

According to the FAQs, the new job protection applies to employees receiving TDI/FLI benefits whose leaves commenced before July 17, 2026. Additionally, while employees wait to hear whether they are eligible to receive TDI/FLI benefits, employers must assume that an employee will be eligible until a determination has been made otherwise.

Medical Leave Benefit Exceeds NJFLA and FMLA

The recent guidance eliminates any ambiguity as to whether receipt of TDI/FLI benefits creates a new job-restoration right. There was uncertainty regarding whether the receipt of benefits alone could provide a basis for job protection, since the amendments state, “nothing in this section or any section … shall be construed as increasing, reducing, or otherwise modifying any entitlement provided to a worker by the provisions of the [NJFLA] to be restored to employment by the employer after a period of family temporary disability leave.” Despite that language, the NJDOL’s new guidance makes clear that the amendments did create a new leave entitlement based solely on receipt of TDI/FLI benefits, regardless of whether an employee is covered under the NFJLA or the FMLA.

TDI/FLI Leave Coverage Limits

For context, TDI/FLI benefits provide employees with up to:

• twenty-six weeks of benefits during a period of leave taken for their own health conditions;
• twelve weeks of benefits for caregiving and bonding leave (in a twelve-month period); and
• twenty-two to twenty-four weeks of benefits for maternity (disability plus bonding) leave.

No Minimum Size Requirements for TDI/FLI Leave

Unlike leave availability and job protection under the NJFLA and FMLA, there are no minimum employer size or work history requirements for employees to receiveTDI/FLI job-protected leave benefits. This lack of minimum requirements means that employers must provide job protection to any employee who receives TDI/FLI benefits, regardless of the employer’s size or whether the employee meets the NJFLA’s or FMLA’s tenure or hours-worked requirements.

Lowered Eligibility Requirements for NJFLA Job-Protected Leave

The NJDOL reminded employers that the amendments have lowered the eligibility requirements for NJFLA leave itself, which provides up to twelve weeks of job-protected leave in a twenty-four-month period to bond with a child or care for a family member with a serious health condition.

As of July 17, 2026, the NJFLA applies to employees at employers with fifteen or more employees worldwide (down from thirty employees). Further, employees now need only three months of work history with their employers (down from twelve months), and only 250 hours worked in the past twelve months (down from 1,000 hours).

Next Steps

Employers may want to review their existing policies to incorporate these new requirements. The NJDOL advises that additional guidance is forthcoming and that formal rulemaking could change policies, procedures, and forms.

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

In addition, the Ogletree Deakins Client Portal covers legal developments in state and major locality leave laws, including New Jersey’s paid and unpaid family and medical leave requirements. Premium-level subscribers have access to comprehensive updated law summaries and policies; 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

• USCIS will continue to accept adjustment of status filings based on the Final Action Dates chart in August 2026 and will not use the Dates for Filing chart.
• Many categories under the Final Action Dates chart have moved forward one month.
• Visas are unavailable for the remainder of the fiscal year for EB-2 applicants from India.

Final Action Dates

The final action dates across many categories have advanced slightly.

• EB-1: The final action dates for China-mainland advance by one month while the dates for India remain the same. All other countries continue to be current.
• EB-2: The final action dates for India EB-2 are unavailable for the fiscal year. All other countries remain the same.
• EB-3: All countries advance except for India and Philippines.
• EB-4: All countries have advanced from September 15, 2022, to October 15, 2022.
• EB‑4 Certain Religious Workers: This category has advanced from September 15, 2022, to October 15, 2022.
• EB-5: No movement is shown.

Source: U.S. Department of State, August 2026 Visa Bulletin, Final Action Dates Chart

Key Takeaways

With some advancement in final action dates, more applicants will become eligible to complete the final step of the permanent residency process. As visas became unavailable in July, applications in the India EB-2 category will not be processed by USCIS until the new fiscal year in October 2026.

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

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Quick Hits

• As of July 1, 2026, employers in Washington State with fifteen or more employees anywhere that inquire about or consider criminal history in employment decisions have significant new requirements under the Washington Fair Chance Act.
• The law applies to all sources of criminal history information.
• The amended law expands protections to current employees.
• The amendments also expand employer obligations to notify employees of their rights.

The WFCA amendments also expand employer obligations to notify employees of their rights.

Key Elements and Exemptions

The WFCA continues to prohibit covered Washington employers from maintaining a policy or practice that automatically excludes applicants with a criminal record. It also retains the prohibition against job advertisements that exclude people with criminal records from applying. For example, statements in job postings like “no felons” or “no criminal background” remain illegal. Both the original law, enacted in 2018, and the amendment apply to all criminal history, regardless of whether it was obtained from a consumer reporting agency (CRA) or another source.

The WFCA does not apply to employers that:

• hire individuals who will or may have unsupervised access to children under the age of eighteen or other vulnerable individuals, as defined by applicable law;
• are expressly permitted or required under federal or state law to inquire into, consider, or rely on criminal records for employment purposes;
• are law-enforcement agencies and criminal-justice agencies as defined under Washington law;
• are seeking nonemployee volunteers;
• are required to comply with the rules or regulations of a self-regulatory organization under Section 3(a)(26) of the Securities Exchange Act of 1934; or
• are hiring for positions under a federal contract that specifically prohibits those with criminal records from working under that contract.

Timing Restrictions

The prior law prohibited an employer from seeking any information, orally or in writing, about an applicant’s criminal record only until the employer determined that the person is otherwise qualified for the job.

The amended WFCA shifts the timing of when covered employers may act. An employer may not inquire about or obtain criminal history information, whether on an application or directly from the individual, or reject an applicant for failing to disclose criminal history, until it has determined that the person is otherwise qualified and extended a conditional offer of employment.

Early Rights Notice

If an applicant voluntarily discloses information about criminal history during an interview, or if an employer discloses to an applicant that the position will be subject to a background check following a conditional offer, the employer must immediately provide a written disclosure of certain rights under the law. The attorney general has not yet released a model form that satisfies this requirement. In addition to this disclosure, employers must provide the attorney general’s updated “Washington Fair Chance Act Guide for Employers and Job Applicants.” This is a relatively unique aspect of the new law.

Newly Prohibited Inquiries and Considerations

The amendments also narrow the criminal history employers may seek or consider. Under the amended WFCA, employers may not, regardless of timing, consider or take a tangible adverse employment action based on an arrest record—unless an adult is out on bail or released pending a trial—or a juvenile conviction record.

Further, the WFCA now expressly applies to all tangible adverse employment actions, newly defined as “a decision by an employer to reject an otherwise qualified job applicant, or to terminate, suspend, discipline, demote, or deny a promotion to an employee.” As the law was previously directed at hiring decisions, this is a considerable expansion of its protections.

Adverse Action Process

The amended WFCA introduces a formal two-step process for taking adverse actions based on criminal history, including new notice and assessment requirements.

Pre-Adverse Action: Legitimate Business Reason Analysis Required

First, before deciding to take any adverse action, employers must analyze whether a legitimate business reason supports an adverse employment decision. A legitimate business reason exists when, based on all available information, the employer has a good faith belief that the nature of the criminal conduct will (a) negatively impact the individual’s fitness or ability to perform the job (the fitness prong), or (b) will cause harm to people, property, business reputation, or business assets (the harm prong). The attorney general’s office has confirmed that both prongs of this assessment require the employer to consider and document the following criminal evaluation factors:

1. the seriousness of the conduct underlying the conviction;
2. the number and type of convictions;
3. the time elapsed since the conviction, excluding periods of incarceration;
4. any verifiable information relating to the individual’s rehabilitation, good conduct, work experience, education, and training;
5. the specific duties and responsibilities of the position; and
6. the place and manner in which the position will be performed. 

Pre-Adverse Action: Letter and Waiting Period

Before taking a tangible adverse employment action based on criminal history, employers must provide the applicant or employee with written notice of the preliminary decision and identify the record(s) on which it is based. The employer must then wait at least two business days before finalizing any decision, giving the individual an opportunity to correct or explain the record or provide information regarding rehabilitation, good conduct, work experience, education, and training. Note that if the information was obtained from a CRA, employers must comply with the longer federal Fair Credit Reporting Act waiting period, generally five business days.

Adverse Action Letter

The post-decision notice is perhaps the most significant change introduced by the new law and is another relatively unique requirement. After the waiting period, the employer must reassess its preliminary decision using the criminal evaluation factors and all available information, including any response received from the individual. If the employer determines that adverse action remains warranted, the employer must prepare a written decision that includes specific documentation of its:

• reasoning and assessment of each criminal evaluation factor, including the impact of the conviction on the position or business operations; and
• consideration of the individual’s rehabilitation, good conduct, work experience, education, and training.

Stricter Enforcement

The attorney general retains investigation and enforcement authority. The amendments eliminate the prior requirement that the attorney general take a progressive approach before pursuing enforcement action. Education and warning steps, previously mandatory, are now discretionary. Penalties range from $1,500 for a first violation to $15,000 for third and subsequent violations per complainant, payable to the complainant or, if none is identifiable, to the attorney general. Following a first violation, the attorney general may also pursue legal action seeking unpaid wages, unpaid penalties, damages, and attorneys’ fees. The amendments do not create a private right of action.

Employers must also comply with the Washington Fair Credit Reporting Act (WFCRA) when obtaining information from a CRA. The WFCRA requires an employer to provide the individual with a written summary of rights under that law, the name, address, and telephone number of the CRA, and a reasonable opportunity to dispute or respond to the report. These requirements are in addition to those imposed by the federal Fair Credit Reporting Act (FCRA). If the employer proceeds to final adverse action, only federal FCRA requirements apply under the old law, as Washington did not previously impose state-specific pre-adverse or adverse action requirements unique to criminal history information.

Seattle employers: Seattle employers have been required to comply with the Seattle Fair Chance Employment Ordinance since 2013. The WFCA now closely tracks the Seattle ordinance, but there are potentially significant differences. For example, Seattle still allows employers to seek criminal history information before a conditional job offer, Washington’s exemptions are a bit broader than Seattle’s, and Washington has not passed regulations or published guidance such as the Questions and Answers Seattle has published. Although Washington’s law is generally more protective of applicants and employees, the Seattle Office of Labor Standards has confirmed it will continue to investigate complaints and enforce its Fair Chance Employment Ordinance. The Washington attorney general’s office has declined to publish further guidance—other than what is already available on its web page—or take a position on preemption at this time. Accordingly, covered employers with Seattle positions must comply with both state and local laws.

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

Washington and Seattle Notice of Fair Chance Requirements, pre-adverse action letters, adverse action letters, and law summaries (timing, arrests, convictions, pre-adverse action process, adverse action process) are available on the Ogletree Deakins Client Portal to Premium-level subscribers. For more information on the Client Portal or a Client Portal subscription, reach out to clientportal@ogletreedeakins.com.

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Quick Hits

• The EEOC has proposed rescinding federal EEO reporting requirements, including mandatory annual EEO-1 filings.
• As of the publication date of this article, the proposed rule has not yet been formally published in the Federal Register and remains subject to public comment.
• Current reporting obligations remain in effect unless and until the EEOC issues a final rule; the EEOC would retain authority to seek relevant records during investigations.

The NPRM, titled, “Removal of Reporting Requirements,” seeks to rescind and remove the requirements to file EEO reports, specifically the filing of EEO-1, EEO-2, EEO-3, EEO-4, EEO-5, and EEO-6 reports and the report-specific recordkeeping and record preservation requirements. The Commission also states that it intends to incorporate previously proposed references to the Pregnant Workers Fairness Act (PWFA) into 29 CFR Part 1602 as part of any final rule issued at the conclusion of this rulemaking.

According to the NPRM, the EEOC “has preliminarily determined that the reports are inconsistent with equal employment opportunity law and potentially unconstitutional” and that “the data collected is not narrowly tailored, is unnecessary to enforce anti-discrimination laws, and at a minimum, that any marginal benefits are outweighed by the substantial burdens imposed on both employers … as well as the Commission.”

The EEOC unveiled the NPRM shortly after a public meeting during which the Commission voted 2–1 to move forward with the proposal. Chair Andrea Lucas and Commissioner Brittany Bull Panuccio voted in favor, while Commissioner Kalpana Kotagal voted against the proposal.

The Proposed Rule

If finalized, the proposed rule would eliminate the EEO demographic reporting requirements in 29 CFR Part 1602, including employers’ annual EEO-1 reports (required of private employers with at least one hundred employees, or federal contractors with at least fifty employees and contracts amounting to at least $50,000) on workforce filing demographic data organized by job category, race/ethnicity, and sex, and the related demographic surveys for unions (EEO-3), state and local governments (EEO-4), and public school systems (EEO-5). The EEOC noted that it had not actually collected EEO-2 data related to joint labor-management committees that control apprenticeship programs since 1981 or EEO-6 data related to institutions of higher education since 1993.

The NPRM estimates that the proposed action would generate approximately $278.4 million in annual cost savings to private employers, state and local governments, local unions, public elementary and secondary school systems and districts, and the Commission.

The Legal Rationale

The EEOC rests its rationale for rescinding EEO reporting on its preliminary conclusion that wholesale collection of demographic information through the EEO reports—unconnected to any specific allegation of discrimination—may hinder effective enforcement of the EEO laws, and may violate the U.S. Constitution. The EEOC’s rationale centers on four arguments:

“Impermissible Focus on ‘Minorities’ and Women”

The Commission contends that the EEO reports were born of a framework focused on discrimination against “minority groups” and women. The agency contends this framework is in tension with the Supreme Court of the United States’ holding in Ames v. Ohio Department of Youth Services, which rejected a heightened standard for members of majority groups to bring claims under Title VII of the Civil Rights Act of 1964. The NPRM states that predetermined racial categories may prioritize combating discrimination against certain groups over others.

Racial Categories Promote “Stereotyping”

The NPRM challenges the usefulness of the race classifications used in EEO reporting, stating they are “largely arbitrary and not based on the EEOC’s enforcement needs.” The NPRM states that the classifications may promote unlawful race- or sex-based stereotyping and conflict with the principle that “employer actions should be colorblind.”

“Misuse of Data”

The NPRM expresses concern that employers may mistakenly believe the EEOC will target them for enforcement based solely on statistical imbalances, and, as a result, take discriminatory actions—including to “correct” those imbalances. It also references Executive Order 14281, which directed federal agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.”

“Potential Equal Protection Violation”

The core constitutional argument is that, because the reports compel government-mandated racial classifications, they are subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment. The EEOC has concluded that the mass collection of demographic data—unconnected to any specific charge of discrimination—is not “narrowly tailored” to a compelling governmental interest. The Commission distinguishes this bulk data collection from its investigative authority to request specific records from a particular employer during an active charge investigation, which it views as a more narrowly tailored alternative.

The Dissent

During the public meeting, Commissioner Kotagal opposed the proposal, arguing that rescinding the reporting obligations would increase costs because the agency would have to use legal processes to require employers to produce the data, which could increase the length of investigations. She further emphasized that employers would need to continue collecting data under certain state laws. She also unsuccessfully sought to extend the comment period to the standard sixty days to provide additional time for stakeholders to review and comment on the proposal.

“It’s a ‘See no evil, hear no evil’ approach,” Commissioner Kotagal stated. “But discrimination does not go away just because you erase the data. It just becomes harder to prove.”

What Employers Need to Know

The proposal to rescind EEO reporting represents a significant potential shift in federal employment reporting requirements. However, the proposal is not yet final, and current reporting obligations remain in effect. The EEOC will also continue to maintain the authority to seek workforce and personnel records during investigations. Employers may wish to distinguish between the proposed elimination of routine EEO reporting and continuing personnel record preservation obligations.

Even if the proposal advances, it may face legal challenges. The constitutional justification relies on recent Supreme Court precedent that could draw legal scrutiny. Specifically, the NPRM treats mandatory demographic data collection as a racial classification subject to strict scrutiny that may be tested in court.

Further, even if EEO-1 reporting is rescinded, separate state and local data collection and reporting requirements would remain in effect, and states may seek to fill the gap by imposing additional workforce demographic data collection requirements.

Next Steps

The NPRM provides for a thirty-day public comment period following its formal publication in the Federal Register. A public hearing is scheduled for August 11, 2026, at the EEOC’s headquarters. Requests to testify must be submitted by August 7, 2026.

Employers and other stakeholders may want to consider submitting comments on the proposal and should stay tuned to forthcoming developments and further details.

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

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

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Quick Hits

• On July 20, 2026, DHS rescinded the 2022 public charge framework and restored broad discretion for officers to weigh all pertinent factors when assessing whether an applicant is likely at any time to become a public charge.
• The rule takes effect September 18, 2026.

Under the Immigration and Nationality Act (INA), an applicant for a visa, admission, or adjustment of status is inadmissible if, in the reviewing officer’s opinion, the individual is likely at any time to become a public charge. This ground of inadmissibility reflects the longstanding policy that noncitizens should be self-reliant rather than dependent on public benefits.

Since 1999, three successive frameworks have governed public charge determinations. The 1999 interim field guidance defined a public charge as someone “primarily dependent on the government for subsistence,” counting only cash assistance (such as Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF)) and long-term institutionalization while directing officers to weigh the totality of the circumstances.

The 2019 final rule broadened the analysis, redefining a public charge as a noncitizen who receives designated benefits for more than twelve months within any thirty-six-month period. It expanded the qualifying benefits to include Medicaid, Supplemental Nutrition Assistance Program (SNAP), and federal housing assistance. DHS stopped applying this rule in 2021.

The 2022 final rule returned to the “primarily dependent” standard, limiting consideration to cash assistance and long-term institutionalization. It provided that disability alone could not be dispositive and exempted categories such as refugees, asylees, and Violence Against Women Act (VAWA) self-petitioners.

DHS now concludes that all three frameworks unduly constrained officer discretion. As a result, the agency is rescinding the 2022 regulation’s core provisions, including the definitions of “public charge” and “receipt of public benefits,” returning to the case-by-case approach that existed before formal regulations were codified in 2019.

The chart below compares the current public charge framework with the pre-2022 standard. Under the pre-2022 approach, immigration officers will have greater flexibility to consider any factors they believe are relevant when deciding whether an applicant is likely to become a public charge. These factors may include the five statutory factors (age, health, family status, financial status, and education and skills), receipt of means-tested public benefits, the Affidavit of Support (Form I-864), and any other circumstances related to the applicant’s ability to support themselves. U.S. Citizenship and Immigration Services (USCIS) is expected to issue guidance before the rule takes effect, but that guidance will not limit officers’ discretion.

Before vs. After: Key Differences

Next Steps

The final rule applies to applications for admission made on or after September 18, 2026, and applications for adjustment of status postmarked or electronically submitted on or after September 18, 2026. Benefits received before September 18 will be evaluated consistently with the 2022 rule, meaning only public cash assistance for income maintenance and long-term institutionalization at government expense will be considered. Benefits received on or after September 18 will be subject to the restored discretionary approach, and officers will conduct individualized, totality-of-the-circumstances reviews.

USCIS will publish a revised Form I-485, and older versions will not be accepted for filings on or after September 18. Applicants filing adjustment applications near September 18 should confirm they are using the correct Form I-485 edition.

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

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

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Quick Hits

• Key personnel can play a central role in government contract proposal evaluations and may be a material basis for an agency’s award decisions.
• Contractors typically have two options when a key person departs during evaluation: (1) notify the agency and propose a replacement which carries the risk of disqualification, or (2) risk protest exposure by remaining silent until after contract award.
• Deciding which risk to take depends on numerous factors, such as how imminent the award decision is, whether the agency will conduct discussions, and if the key person is truly unavailable.

Government Accountability Office (GAO) bid protest decisions have developed a clear rule: when a contractor knows that a proposed key person has become unavailable, the contractor generally has a duty to inform the agency of the change to its proposal. Failure to do so can render the proposal materially misleading and lead to the loss of the award in a bid protest. But notifying the agency of the issue before award is not always a safe harbor and carries the risk of disqualification. To escape this rock and hard place, a contractor must consider several factors before deciding which risk to accept when a proposed key person becomes unavailable.

Key Personnel Are Material to Proposal Evaluation, And So Is Their Unavailability

Many federal solicitations require offerors to identify specific individuals for key positions such as program manager, lead engineer, medical director, or chief architect. These individuals are designated as “key personnel” because the agency considers their qualifications critical to successful performance. Solicitations often require contractors to include detailed resumes demonstrating key personnel qualifications and experience, represent that the personnel will be available to perform the contract, and require inclusion of letters of commitment from the proposed individuals. Because agencies evaluate the personnel during source selection with the expectation that they will be the ones performing the work, the proposed personnel can significantly affect the agency’s technical ratings and ultimately the award decision. In some procurements, the experience of key personnel may be the most heavily weighted element of the proposal.

Procurement evaluation periods can extend for significant lengths of time, and it is not unheard of for offerors to wait more than a year after proposal submission before the agency makes an award selection. While contractors wait, life continues for their proposed key personnel, and sometimes they decide to make employment changes that render them unavailable to perform. Solicitations are typically silent on this scenario, creating a dilemma for contractors about how to proceed. Although there is no affirmative obligation in the Federal Acquisition Regulation requiring a contractor to notify the agency of key personnel becoming unavailable after proposal submission, GAO has repeatedly addressed this situation in the context of post-award bid protests.

The consistent principle emerging from GAO decisions is that a proposal may become materially misleading if an offeror fails to inform the agency that a key person has become unavailable. The GAO consistently rules that offerors are required to advise agencies of material changes in proposed staffing, even after submission of proposals. This rule is grounded in the view that a bidder may not receive award of a contract based on a knowing material misrepresentation in its proposal. The key to GAO’s decisions, though, is the contractor’s knowledge concerning the individual’s unavailability to perform the contract. And GAO clarifies that there is no obligation to inform the agency where the offeror does not have actual knowledge of the key person’s unavailability.

Contractor Options When Key Personnel Become Unavailable

When a key person leaves before award and the solicitation is silent on how a contractor should address the situation, contractors generally have two options, both of which carry risk.

Option 1: Inform the Agency and Propose a Replacement

To avoid protest risk from remaining silent, the contractor can notify the contracting officer of the key person’s unavailability and request permission to substitute another individual who meets or exceeds the solicitation’s qualifications. This request may not be granted, however, because it creates a separate dilemma for the agency. Allowing an offeror to change a key person after proposal submission is accepting a material revision to the proposal which requires the agency to open discussions with all offerors and afford them an opportunity to revise their proposals. If the agency intended to award the contract without discussions or had already completed discussions with offerors, then the contracting officer may be reluctant to invite revised proposals that would require additional resources to evaluate and prolong the procurement process. In that case, the “easy button” for the agency may be to decline the contractor’s request to substitute the key person and disqualify the contractor from the competition for submitting a materially noncompliant proposal.

Option 2: Take No Action

The other approach is to remain silent if a key person departs and raise the matter with the agency after award. This approach also carries substantial risk. Because competitors often recruit from the same labor pool, key personnel departures frequently become known within the industry, increasing the likelihood of a protest challenge. If a competitor files a protest and demonstrates that the contractor knew that their key person was unavailable during the evaluation period, GAO may conclude the proposal was materially misleading. In such cases, the agency may be required to terminate the award and reevaluate proposals.

How to Choose Among Bad Options?

There are several factors to consider in deciding which risk to take when a key person becomes unavailable before award. The first is whether the award announcement date is imminent, far off, or unknown. If imminent, then it is unlikely that the contracting officer will accept proposal revisions to replace a key person and could be inclined to disqualify the offeror from the competition rather than delaying the procurement by opening discussions with all offerors. If the award date is far off or unknown, is it known whether the agency will conduct discussions before the award? If so, then the contractor could wait until the contracting officer opens discussions and invites revised proposals to replace the unavailable key person.

Another consideration is whether the individual is, in fact, unavailable. If the contractor can demonstrate a good faith belief that despite a key person’s announced intention to leave the company for another employment opportunity the individual’s unavailability was not yet certain at the time of award, then in the event of a protest the contractor could argue that it did not have knowledge of the individual’s unavailability. For example, if the key person left to accept a position with another company that performs similar services, discussions with that company could be opened on the possibility of the key person performing as a subcontractor. If the offeror could state in good faith that such discussions were open and ongoing at the time of award, then in the event of a protest, the offeror may argue that it did not know that the key person was, for certain, unavailable.

Key Takeaway

In the end, there is no risk-free path when key personnel become unavailable during the evaluation period, but only a strategic choice between competing risks that must be assessed in real time. GAO’s case law makes clear that silence in the face of known unavailability can undermine the integrity of a proposal and jeopardize an award, while proactive disclosure may invite disqualification depending on the procurement posture. The practical takeaway for contractors is to treat key personnel availability as a dynamic compliance issue, not a static proposal representation, and to make deliberate, well-documented decisions grounded in timing, knowledge, and agency behavior. By approaching these situations with a clear understanding of the legal framework and the procurement context, contractors can better navigate the tension between preserving competitiveness and avoiding protest exposure.

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.

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Quick Hits

• Indiana recently announced it will discontinue a state policy requiring that a minimum percentage of spending in government contracts go to minority-owned and women-owned businesses.
• Indiana Attorney General Todd Rokita recently released an advisory opinion, concluding that the minority- and women-owned enterprise components of Indiana’s Diversity Business Enterprises (DBE) program are unconstitutional.
• These actions leave in place the state program establishing preferences for contracting with businesses owned by veterans.

Under the DBE program, created by statute in 1983, state agencies were required to allocate a minimum percentage of state contracting funds to businesses owned by members of minority groups or women. A business qualified as minority-owned if it was at least 51 percent owned, operated, and controlled by U.S. citizens who are Black, Hispanic, Asian, or Native American. Likewise, a business qualified as female-owned if it was at least 51 percent owned, operated, and controlled by one or more women.

The attorney general’s advisory opinion stated that those two components of the DBE program are discriminatory and violate the U.S. Constitution’s Equal Protection Clause and Fourteenth Amendment. As a result, the governor moved to eliminate those components. The changes do not affect the state’s preferences for contracting with businesses owned by veterans. The attorney general indicated that contracting preferences for businesses domiciled in Indiana also would be legal.

The state-level action follows recent steps by federal agencies to stop what the Trump administration considers illegal diversity, equity, and inclusion (DEI) programs in the public sector and private sector. In the last year, the U.S. Equal Employment Opportunity Commission (EEOC) has shifted enforcement priorities to emphasize discrimination claims by majority-group plaintiffs, such as white men and Christians. The U.S. Department of Justice (DOJ) has filed several lawsuits against states, universities, and public-school systems, contesting diversity programs in recruiting and hiring.

On March 26, 2026, President Donald Trump released an executive order, directing federal agencies to ensure that federal contracts include a clause prohibiting DEI programs in recruiting, employment, and resource allocation.

Next Steps

In the future, businesses in Indiana can expect the state to stop accepting applications to certify businesses as minority-owned or women-owned. The state’s policy change does not mean that minority-owned and women-owned businesses cannot win state contracts.

Ogletree Deakins’ Indianapolis office and Diversity, Equity, and Inclusion Compliance Practice Group will continue to monitor developments and will post updates on the Diversity, Equity, and Inclusion Compliance, Government Contracting and Compliance, and Indiana 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.

Lauren B. Hicks is a shareholder in Ogletree Deakins’ Indianapolis office.

Janet Q. Lewis is senior counsel in Ogletree Deakins’ Greenville 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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In Decloedt v. Radnet Management, Inc., the California Second Appellate District affirmed the denial of an employer’s motion to compel arbitration, concluding that the plaintiff-respondent’s allegations of severe or pervasive sexual orientation harassment by a coworker fell squarely within the EFAA’s exemption from the Federal Arbitration Act (FAA).

Quick Hits

• In Decloedt v. Radnet Management, Inc., the California Court of Appeal, Second Appellate District, held that harassment on the basis of sexual orientation is a form of sexual harassment under FEHA and thus falls within the ambit of sexual harassment under the EFAA.
• The court relied on the Supreme Court of the United States’ reasoning in Bostock v. Clayton County, 590 U.S. 644 (2020), concluding that because discrimination based on sexual orientation necessarily entails discrimination based on sex, the same logic applies to harassment claims.
• The decision means that allegations of sexual orientation harassment may trigger the EFAA, rendering pre-dispute arbitration agreements unenforceable.

Background

In October 2024, Trevor Decloedt filed a complaint in state court against his former employers, his former supervisor, and a former coworker, alleging eleven California state law causes of action, including hostile work environment and sexual harassment discrimination under FEHA and harassment because of his sexual orientation.

Specifically, he alleged that beginning in early 2022, a coworker had subjected him to repeated derogatory comments about his sexual orientation, including telling him, “You shouldn’t be gay; it’s not okay; it’s sinning.” He further alleged that the coworker had exhibited aggressive behavior, threatening to kill him and pulling his hair on multiple occasions, culminating in a physical attack in November 2022 that caused him to flee to the bathroom for safety. Decloedt alleged that he reported these incidents to his supervisor and HR, but no corrective action was taken.

In December 2024, the defendants in the case moved to compel arbitration pursuant to an agreement Decloedt had signed at the outset of his employment. The trial court denied the motion, finding that the sexual harassment claim triggered the EFAA. The defendants appealed.

The Court of Appeal’s Analysis

The defendants’ appeal raised two principal arguments: (1) harassment based on sexual orientation is not a form of sexual harassment under FEHA, and (2) even if it were, the plaintiff-respondent (Decloedt) had failed to allege facts showing that the harassment was sufficiently severe or pervasive. The Court of Appeal rejected both arguments, affirming the trial court’s denial of the defendants’ motion to compel arbitration.

Sexual Orientation Harassment as Sexual Harassment

With regard to the defendants’ first argument, the court observed that FEHA prohibits an employer from harassing an employee “because of … sex … [or] sexual orientation.” Relying on Bostock v. Clayton County, Georgia, the court reasoned that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex,” and that this logic “applies with equal force when determining whether an employer who has harassed an employee because of his or her homosexuality has engaged in harassment because of the employee’s sex.”

The court also rejected the defendants’ statutory structure argument. The defendants pointed to FEHA’s section 12940, subdivision (j)(4)(C), which provides that harassment “because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions,” arguing that the omission of “sexual orientation” from that list demonstrated it was a distinct category.

The court disagreed, holding that the word “includes” is “generally used as a word of enlargement and not of limitation,” and that by listing certain characteristics, the legislature had merely removed doubt about those categories without excluding others “inextricably intertwined with an employee’s sex.”

Severe or Pervasive Standard

Assuming for the sake of argument that the federal plausibility standard under Rule 12(b)(6) applied, the court found that Decloedt had sufficiently alleged severe or pervasive harassment. According to the court, his complaint could reasonably be read as alleging that over the course of several months, his former coworker had repeatedly chastised him because of his sexual orientation, had frequently expressed anger through death threats and hair-pulling, and on one occasion had attacked him with such force that he was forced to flee for his safety. Because the alleged conduct caused the employee to contemplate suicide, the court concluded it was sufficiently severe or pervasive to support a sexual harassment claim.

Key Takeaways

The court’s decision in Decloedt significantly expands the categories of harassment that can trigger the EFAA in California. Prior published California appellate decisions addressing the EFAA involved cases where the existence of sexual harassment was either undisputed or addressed only in passing. Decloedt is the first to squarely hold, as a matter of law, that sexual orientation harassment is sexual harassment under FEHA.

Employers in California should be aware that employees alleging harassment based on sexual orientation, in addition to those alleging more traditional forms of sexual harassment, may now invoke the EFAA to avoid arbitration of their cases. Employers may wish to review their anti-harassment policies and training programs to ensure they address sexual orientation harassment and consider the litigation risk posed by the EFAA’s broad exemption when evaluating the enforceability of their arbitration agreements.

Ogletree Deakins’ California offices, Appellate Practice Group, and Arbitration and Alternative Dispute Resolution Practice Group will continue to monitor developments and will provide updates on the Arbitration and Alternative Dispute Resolution and California blogs as additional information becomes available.

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