Employment Law This Week

What employers should know about key developments this week:

• Balancing DEI Risk: Employers are still adjusting to the current administration's diversity, equity, and inclusion (DEI) legal framework, and the state-versus-federal conflict and possible post-midterm changes add uncertainty. Some lines are clear, but employers still need to weigh competing interests, and there are no risk-free options.
• AI-Assisted Employee Complaints: Investigators are seeing more complaints that are informed by artificial intelligence (AI), and some are written entirely by AI. Each one takes extra time to unpack and should be verified directly with the employee, so the employer can discern the employee's concerns in their own words. AI can add language with legal weight the employee never intended, so a strong interview process is essential.
• Activism, Social Media, and Generation Z: Employee activism now spreads quickly and publicly, and a company's brand posts can shape how employees feel about working there. Before responding, ask whether the issue has a nexus to terms and conditions of employment. If it does, National Labor Relations Act protections should shape the response. With Gen Z now in the workforce, employers also need to adapt how they communicate.

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Epstein Becker Green is a national law firm focused on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship.

EMPLOYMENT LAW THIS WEEK® and #WorkforceWednesday® are registered trademarks of Epstein Becker & Green, P.C.

© Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

What employers should know about key developments this week:

• State and Local Laws: Rhode Island was the first state to pass a law requiring workplace protections for employees experiencing menopause, and Illinois and Philadelphia now have laws that take effect January 1, 2027. The Illinois law requires employers to provide reasonable accommodations for impacted employees.
• Vetoes in California and Virginia: California Governor Gavin Newsom vetoed menopause-related legislation three times, saying he supported protecting workers from bias tied to menopause but feared the legislation would increase litigation risk. He also noted that existing state civil rights law already covers menopausal conditions. Virginia Governor Abigail Spanberger vetoed a menopause-related bill in May 2026.
• Federal Proposal: Existing federal laws do not recognize menopause as a distinct protected category, so employees have relied on overlapping protections based on sex, age, or disability. The Menopausal Workers' Fairness Act, introduced in July 2026, would create an explicit federal right to reasonable accommodation for symptoms related to menopause.

In this episode of Employment Law This Week®, Epstein Becker Green attorney Courtney McFate discusses state and local menopause protections for employees, vetoes of menopause-related legislation in California and Virginia, and the proposed federal Menopausal Workers' Fairness Act.

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Epstein Becker Green is a national law firm focused on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship.

EMPLOYMENT LAW THIS WEEK® and #WorkforceWednesday® are registered trademarks of Epstein Becker & Green, P.C.

© Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

What employers should know about key developments this week:

• Limits on Automated Decisions and Surveillance: Starting July 1, 2027, under California's "No Robo Bosses Act," employers cannot base disciplinary or termination decisions solely on an automated decision-making system's output, and they face new written notice and data access obligations. Separately, AB 1883, effective January 1, 2027, bars employers from using artificial intelligence in workplace surveillance tools to predict or infer an employee's emotional state or to collect neural data.
• Stay-or-Pay Law Delayed: Amendments to California's stay-or-pay law provide some relief to employers: Clawback restrictions now apply only to contracts entered into on or after January 1, 2027, although plaintiffs may still challenge existing agreements under other legal theories. The changes also add exemptions for certain employees in the financial services industry, permit recovery of some paid time off advances, and allow more flexibility in the timing of qualifying bonus clawbacks.
• Higher Pay Data Penalties: California's penalty for an employer's first failure to submit pay data remains capped at $100 per employee per pay period, but the penalty for subsequent violations will increase from $200 to $1,000 per employee.

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Epstein Becker Green is a national law firm focused on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship.

EMPLOYMENT LAW THIS WEEK® and #WorkforceWednesday® are registered trademarks of Epstein Becker & Green, P.C.

© Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

What employers should know about key developments this week:

• Paid Leave Reductions: The District of Columbia (DC) reduced paid family leave from 12 to six weeks, paid medical leave from 12 to 10 weeks, and the maximum weekly benefit to $1,100, effective October 1, 2026, for claims filed before October 1, 2030.
• Employee Misconduct During Protected Activity: The National Labor Relations Board (NLRB) will no longer use its 1979 Atlantic Steel standard and will return to its 2020 General Motors test, making it easier to discipline employees for misconduct during a strike or other protected activity.
• Accenture False Claims Act Settlement: Accenture agreed to pay $25 million to settle allegations that it falsely certified compliance with federal law—a violation of the False Claims Act—despite maintaining diversity initiatives that relied on race and sex for hiring and promotion decisions. It is the third major settlement announced under the Department of Justice's Civil Rights Fraud Initiative.

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Epstein Becker Green is a national law firm focused on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship.

EMPLOYMENT LAW THIS WEEK® and #WorkforceWednesday® are registered trademarks of Epstein Becker & Green, P.C.

© Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

What employers should know about key developments this week:

• New Employee Access Right: Starting November 8, 2026, New York employers must allow current and former employees to access their personnel files up to two times per calendar year, and employers must produce the files within five business days.
• Notification and Response Rights: An employer must notify an employee within 10 days of placing any negative information in the employee's personnel file. The employee has the right to respond, and that response will be included in the personnel file unless the employer and employee agree otherwise.
• Collective Bargaining Agreements and Compliance: The new law does not change existing collective bargaining agreements (CBAs) if they already provide employees the same level of access to personnel records as the statute requires. Employers with unionized workforces should review their CBAs against the new statutory floor.

In this episode of Employment Law This Week®, Epstein Becker Green attorney Adam M. Tomiak discusses what the New York personnel file access law means for employers.

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Epstein Becker Green is a national law firm focused on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship.

EMPLOYMENT LAW THIS WEEK® and #WorkforceWednesday® are registered trademarks of Epstein Becker & Green, P.C.

© Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

What employers should know about key developments this week:

• Candidate Fraud Escalating Globally: According to the research firm Gartner, by 2028, one in four candidate profiles could be fraudulent in some way. Artificial intelligence (AI) tools now make it easier to create false identities and fabricate credentials, and employers face the dual risk of hiring unqualified candidates or unknowingly bringing in individuals with fraudulent intent.
• North Korea's Remote Worker Operation: From 2020 to 2022, the U.S. government identified over 300 U.S. companies—including Fortune 500 firms—that unknowingly hired fraudulent remote workers operating as part of a coordinated North Korean state operation.
• Building an Insider Threat Program: Hiring fraudulent candidates can result in security threats, intellectual property theft, reputational damage, operational disruption, and potential Office of Foreign Assets Control sanctions. Employers should implement a comprehensive insider threat program that identifies risk areas while complying with applicable background check laws and other federal, state, and local legal requirements.

In this episode of Employment Law This Week®, Epstein Becker Green attorneys Brian G. Cesaratto and Genevieve M. Murphy-Bradacs examine how employers can safeguard their hiring processes against fraudulent candidates and state-sponsored threats in an AI-enabled environment.

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Epstein Becker Green is a national law firm focused on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship.

EMPLOYMENT LAW THIS WEEK® and #WorkforceWednesday® are registered trademarks of Epstein Becker & Green, P.C.

© Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

What employers should know about key developments this week:

• DOL's Visa Crackdown: The U.S. Department of Labor (DOL) has frozen all new permanent labor certification (PERM) applications from several major IT and tech companies as part of a joint investigation with the White House Fraud Task Force examining allegations of wage suppression, fake recruitment processes, and systemic misuse of H-1B visas and the PERM process.
• State Department Halts Immigrant Visas: The U.S. Department of State has paused all immigrant visa applications from outside the United States and is preparing to revoke up to 200,000 business and tourism visas held by individuals who have sought asylum.
• H-2A Farmworker Wage Rates in Limbo: A federal court ruled that the DOL's Adverse Effect Wage Rate methodology for H-2A farmworkers is unlawful, requiring the agency to recalculate rates and potentially exposing employers to back pay liability for the difference.

Visit our site for this week's video edition and more news: https://www.ebglaw.com/eltw447

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Epstein Becker Green is a national law firm focused on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship.

EMPLOYMENT LAW THIS WEEK® and #WorkforceWednesday® are registered trademarks of Epstein Becker & Green, P.C.

© Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

What employers should know about key developments this week:

• NLRB Shifts to Republican Majority: The Senate confirmed David Prouty and James Macey to the National Labor Relations Board ("NLRB" or "Board") in August, establishing Republican control with three Republican members among the four currently confirmed. General Counsel Crystal Carey has indicated her intent to present several decisions for the new majority to overturn, particularly the Cemex, Stericycle, and Thryv decisions from the Biden era.
• Chevron Deference Ends: Following the U.S. Supreme Court's Loper Bright ruling, courts are no longer required to defer to agency interpretations of ambiguous statutes. Circuit courts now have authority to reject NLRB positions that lack statutory support.
• DC Circuit Declines to Enforce "Successor Bar" Doctrine: The U.S. Court of Appeals for the District of Columbia Circuit refused to enforce a Board order based on the "successor bar" doctrine—a Board-created rule affecting when representation elections can proceed after a company acquisition. This decision is a clear sign of how the circuit courts can be expected to address the deference to be afforded to administrative agencies' statutory interpretations post-Loper Bright.

In this episode of Employment Law This Week®, Epstein Becker Green attorneys Steven M. Swirsky and Erin E. Schaefer discuss the NLRB's new landscape under Republican control and how the end of Chevron deference affects agency interpretations.

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Epstein Becker Green is a national law firm focused on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship.

EMPLOYMENT LAW THIS WEEK® and #WorkforceWednesday® are registered trademarks of Epstein Becker & Green, P.C.

© Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

What employers should know about key developments this week:

• State-Led Artificial Intelligence (AI) Legislation: Illinois recently codified the disparate impact theory of liability (which focuses on effect, not intent), and California has long recognized the theory. Both states' AI frameworks should be interpreted accordingly. Texas's Responsible AI Governance Act takes a different approach, requiring evidence of discriminatory intent.
• Discipline and Termination Oversight: California's Senate Bill 947, the No Robo Bosses Act, would bar employers from relying solely on automated systems for discipline or termination decisions and would require human review with independent corroboration.
• Federal Pushback and State Retreat: Colorado twice delayed its original AI Act, then paused enforcement amid a lawsuit joined by the federal government. The state ultimately repealed the original law and replaced it with a narrower version focused on notice and disclosure.

In this episode of Employment Law This Week®, Epstein Becker Green attorneys Eleanor T. Chung and Nathaniel M. Glasser examine how states are regulating AI in the workplace and what employers need to know.

Check out our State AI Law Tracker: https://www.ebglaw.com/aimap

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Visit our site for this week's video edition and more news: https://www.ebglaw.com/eltw445

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Epstein Becker Green is a national law firm focused on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship.

EMPLOYMENT LAW THIS WEEK® and #WorkforceWednesday® are registered trademarks of Epstein Becker & Green, P.C.

© Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.

What employers should know about key developments this week:

• DOL Opinion Letter FLSA2026-9: The U.S. Department of Labor's (DOL's) Wage and Hour Division (WHD) evaluated several real-world scenarios—such as an employee working from home in the morning to avoid traffic before commuting in later—and concluded that voluntary midday travel between home and the office qualifies as "normal" or "ordinary" commuting, and need not be compensated, even where the employee performs work at both locations.
• DOL Opinion Letter FLSA2026-10: In a second letter, the WHD distinguished between commute-related tasks that are merely incidental to travel and those that are integral to job duties. Specifically, the WHD found that time spent by the employee in question receiving pages or assignments was not compensable, while time spent calling clients or scheduling appointments was compensable.
• Why These Letters Matter: Work increasingly happens in noncontinuous blocks across different locations, raising new questions about when travel time is compensable. While WHD opinion letters aren't binding on courts, they provide guidance for employers; the agency has issued 12 so far in 2026, with more expected.

In this episode of Employment Law This Week®, Epstein Becker Green attorneys Paul DeCamp and Eduardo J. Quiroga discuss the two opinion letters and their implications for compensable travel time.

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Epstein Becker Green is a national law firm focused on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. This video is for informational purposes only and does not constitute legal advice. Viewing this video does not create an attorney-client relationship.

EMPLOYMENT LAW THIS WEEK® and #WorkforceWednesday® are registered trademarks of Epstein Becker & Green, P.C.

© Epstein Becker & Green, P.C. All Rights Reserved. Attorney Advertising.