The California PERB backstop law (AB 288) and Washington’s analogous measure are being challenged on federal preemption grounds. It affects the FTC, the SEC, the FCC, and every other multi-member independent agency. Several developments that haven’t yet resolved will define employment law’s trajectory through the end of the year and into 2027. Employers are navigating this without settled guidance, in real time. The tension between the EEOC’s enforcement posture and what the statute actually requires will generate litigation throughout 2026. The ruling opens the courthouse door slightly wider for majority-group claims; it doesn’t automatically invalidate programs that survived scrutiny before.

First, without a confirmed quorum, the Board cannot issue decisions in unfair labor practice appeals, which can stall matters for extended periods. Circuit’s decision heightens uncertainty about Board leadership stability and could accelerate policy swings with changes in administrations. This year-end update provides insight into the most consequential developments for employers, focusing on the National Labor Relations Board’s (NLRB) shifting authority, new standards for employer liability, heightened scrutiny of artificial intelligence (AI), and a wave of new state and local https://higgertylaw.ca/blog/what-is-an-employment-standards-officer-inspection mandates.

Today’s episode provides the latest update on court litigation involving President Trump’s DEI Executive Orders, and analyzes the EEOC’s brand new guidance on what constitutes “illegal DEI.” Howard and I discuss the major developments from the first year of President Trump 2.0 and the impact on employers. This episode provides important takeaways for employers to address internal and external messaging after – and before – a crisis occurs. Challenging employee leave and accommodation requests, and how employers might consider potential solutions to those challenges.

Evolving Standards for Employer Liability

The class-action lawsuit Mobley v. Workday, Inc., which alleges that an HR software vendor’s AI tools are discriminatory, highlights the risk for employers using third-party AI for hiring and other employment decisions. This approach, which diverges from the harm-based standard followed in other circuits, creates a jurisdiction-dependent ability to “pause” Board enforcement. The Fifth Circuit’s decision in SpaceX v. NLRB allows employers in that circuit (specifically, Texas, Louisiana, and Mississippi) to seek to enjoin ongoing NLRB proceedings based on the alleged unconstitutionality of Board member and administrative law judge (ALJ) removal protections. Today’s episode updates the latest trends in employment law, including changes with the EEOC’s focus and makeup, rulemaking ping-pong with Today I am joined by two of my immigration law partners, Scott Bettridge and David Adams, to discuss the new immigration policy and initiatives under President Trump’s 2.0 administration, and how employers should prepare for and respond https://heplerbroom.com/insights/news/missouri-government-actions-on-covid-19-updated-5-7-2020/ to I-9 audits and ICE raids. Today’s episode updates the latest trends in employment law, including changes with the EEOC’s focus and makeup, rulemaking ping-pong with the DOL’s independent contractor and overtime exemption rules, bucking the trend with non-compete legislation, and regulating “moonlighting.”

Non-compete clauses, confidentiality agreements, and non-disparagement provisions that Abruzzo had argued were presumptively unlawful under the NLRA are now in a more permissive enforcement environment. The 2023 rule — which would have treated indirect or potential control as sufficient — was vacated before taking effect and is now effectively shelved. Under the reinstated 2020 standard, a business is a joint employer only if it “possesses and exercises substantial direct and immediate control” over at least one essential term or condition of employment. The Supreme Court has separately agreed to consider whether Humphrey’s Executor should be overruled in a pending FTC case. In early 2025, President Trump removed NLRB member Gwynne Wilcox and Acting General Counsel Jennifer Abruzzo, reducing the Board below its quorum threshold. In a concurrence joined by Justice Gorsuch, Justice Thomas questioned whether the McDonnell Douglas burden-shifting framework itself — the foundational analytical structure used in most employment discrimination cases — remains a useful tool or should be reconsidered.

• Employers with multijurisdictional footprints should address these changes to refine and update compliance roadmaps for 2026.
• This new episode highlights a few of the biggest L&E developments from the Summer of 2025, including from the DOL
• Departing from EEOC guidance and other circuits that use a negligence standard, the court held that an employer is liable for harassment of an employee by a client or customer only if the employer intended for the harassment to occur or was substantially certain that it would occur.
• I am joined by Claudio Martinez Santistevan, a lawyer from the Mexico-based law firm of De La Vega & Martinez Rojas to discuss Mexico’s perspectives on the first few months of President Trump’s second term and how this administration’s initiatives are viewed.
• Employers are navigating this without settled guidance, in real time.
• The law makes non-compete agreements unenforceable against any employee — not just low-wage workers — who is discharged without cause, unless the employer provides severance benefits or other monetary payment, disclosed at the time of the agreement’s execution.

AI in Employment Draws Regulatory and Litigation Scrutiny

In Ames v. Ohio Department of Youth Services, Justice Ketanji Brown Jackson wrote for a unanimous Court, holding that majority-group plaintiffs are not required to demonstrate “background circumstances” to establish a prima facie case of employment discrimination under Title VII. And is not intended or written by us to be used and/or relied on as written tax advice for any purpose including, without limitation, the marketing of any transaction addressed herein. As organizations prepare for 2026, it is essential to reassess compliance frameworks, monitor ongoing legal developments, and proactively address potential exposure.

Utah has banned non-compete agreements for all health care workers entirely effective May 6, 2026. The law makes non-compete agreements unenforceable against any employee — not just low-wage workers — who is discharged without cause, unless the employer provides severance benefits or other monetary payment, disclosed at the time of the agreement’s execution. For employers in the Sixth Circuit, this limits the Board’s ability to issue bargaining orders following pre-election unfair labor practices — but whether other circuits will follow remains an open question. The Sixth Circuit added another dimension in March 2026, vacating a bargaining order in Brown-Forman Corp. v. NLRB on the grounds that the Board had exceeded its authority by establishing a new union recognition standard through adjudication that conflicted with prior precedent.

• Imposing a categorical extra burden based solely on a plaintiff’s group membership — requiring more proof simply because of who the plaintiff is — contradicts the statute’s plain text and the Court’s own precedents.
• Today’s episode provides the latest update on court litigation involving President Trump’s DEI Executive Orders, and analyzes the EEOC’s brand new guidance on what constitutes “illegal DEI.”
• The laws require additional safety protocols to detect potential harm and notify users that they are interacting with AI on a recurring basis.
• As organizations prepare for 2026, it is essential to reassess compliance frameworks, monitor ongoing legal developments, and proactively address potential exposure.

The outcome of that proceeding could fundamentally alter the legal structure of every independent federal agency, not just the NLRB. Circuits — where the background circumstances rule had been applied — will find it harder to obtain early dismissal of discrimination claims brought by members of majority groups. And the EEOC has pivoted its enforcement focus in ways that are creating new litigation risk for employers who didn’t update their DEI programs fast enough. Businesses should work closely with their legal counsel to evaluate how these changes apply to their specific operations and to develop tailored strategies that support compliance and reduce risk moving forward. Employers operating across multiple jurisdictions indeed face an increasingly fragmented compliance environment, where circuit splits, emerging technologies, and expanding worker‑protection laws create both uncertainty and operational risk.

The developments that actually matter for workers and employers most of the time — the doctrinal shifts, the regulatory reversals, the state-by-state legislative churning — move through the legal system with little fanfare, and then arrive on HR desks and employment lawyers’ caseloads as sudden new realities. Within the first year, the mayor must designate a responsible agency; within the next year, that agency must publish a standardized reporting form; and within one year after publication of the same, covered employers must submit their first annual report. On December 4, 2025, the city https://chinanewsapp.com/the-most-effective-tools-for-cleaning-the-house.html council overrode a mayoral veto and enacted laws requiring private employers with 200 or more employees in New York City to submit annual pay-data reports modeled on the former federal EEO-1 Component 2 (pay band) framework.

As Littler’s analysis notes, well-documented inclusion initiatives that don’t rely on protected characteristics in individual employment decisions remain defensible under Title VII. The EEOC’s 2025 performance report flagged DEI 14 times and emphasized “anti-American bias” in hiring — a framing that puts employers who expanded diversity programs in the past several years in a difficult position. The EEOC has simultaneously deprioritized claims based on “disparate impact” (policies that affect protected groups disproportionately even without discriminatory intent) in favor of direct challenges to employer diversity policies. Pending legislation in Connecticut, Illinois, and New Jersey would further restrict enforcement, in some cases to employees earning up to $300,000.