Davis+Gilbert PERKS

PERKS is published by Davis+Gilbert, a New York-based law firm providing counsel across a broad range of practices. Davis+Gilbert PERKS offers insights from attorneys on performance, engagement, rewards, knowledge (of the law) and success. Read More...

California Governor Gavin Newsom recently signed a series of bills intended to protect workers from the impact of AI, automated technologies, and AI-assisted surveillance.

The legislation follows the Governor’s Executive Order issued in May 2026, which established a policy framework intended to help California anticipate and manage workforce disruption caused by AI.…

The Second Circuit Court of Appeals recently held that when the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) applies to at least one claim in an employee’s lawsuit, the EFAA invalidates a pre-dispute arbitration agreement as to the entire lawsuit. This includes claims unrelated to sexual harassment or assault such as breach of contract and wage claims. In Diaz-Roa v. Hermes Law, P.C., a senior employee filed sexual harassment, contract, wage and other claims against a law firm and another business entity. The defendants argued that the EFAA should have only permitted the employee’s harassment claim to be decided in court while the rest of the case belonged in arbitration under a pre-dispute arbitration agreement that the employee signed. The Second Circuit disagreed, finding that when a case involves a sexual harassment or sexual assault claim, the arbitration agreement is invalidated under the EFAA with respect to the entire case. The Sixth and Ninth Circuits have issued similar rulings. Based on this decision, employers in New York, Connecticut, and Vermont should be aware that even if an employee signs an arbitration agreement, the inclusion of a claim related to sexual harassment or assault in a case involving other non-harassment claims could result in the entire case being litigated in court instead of arbitration. …

Sponsors of self-insured health plans should take note of a recent Seventh Circuit case addressing when states can regulate their plans.

On August 26, 2026, the Seventh Circuit upheld the lower court’s ruling in Central States, Southeast and Southwest Areas Health and Welfare Fund and Charles A. Whobrey v. McClain.

The case deals with the way in which states may regulate pharmacy benefit managers (PBMs) and, by extension, self-insured health plan sponsors.

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On September 8, 2026, the Department of Labor issued new enforcement guidance regarding the Mental Health Parity and Addiction Equity Act (MHPAEA) and its nonquantitative treatment limitation (NQTL) requirements.

Under MHPAEA, group health plans must ensure that any nonquantitative treatment limitations (NQTLs) affecting mental health and substance use disorder (MH/SUD) benefits are designed and applied in a manner comparable to, and no more restrictive than, those applied to medical/surgical benefits.…

Governor Newsom recently signed into law SB 1149, which amends the state’s bereavement leave law to allow for bereavement leave for designated individuals.

Under existing law, California employers with 5 or more employees must provide employees with 5 days of unpaid bereavement leave upon the death of a family member. The current law’s definition of a family member includes a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law.…

Yesterday, September 24th, the National Labor Relations Board (the “Board”) issued a decision establishing the test to be used in determining when an employee’s union-related activity goes too far to lose Section 7 protection, such that the termination of their employment for such conduct does not violate the National Labor Relations Act (“NLRA”).

The Board re-adopted what is known as the Wright Line test and held that the General Counsel must initially show that:

  1. the employee engaged in activity protected by Section 7 of the NLRA,
  2. the employer knew of that activity, and
  3. the employer had animus against the Section 7 activity.

If that is established, then the termination of the employee’s employment will violate the NLRA unless the employer can show that it would have taken the same action even in the absence of the Section 7 activity.

In issuing this decision, the Board overturned its prior standard, which used different tests depending on the setting of the conduct.

For many employers, including non-union employers, the decision is a reminder that inappropriate conduct by an employee may be protected under the NLRA if it involves union activity, or other “concerted activity” such as complaining about workplace conditions, and employers should consult legal counsel before taking adverse action against an employee who is potentially engaging in activity protected by the NLRA.…

On Monday, September 21st, the Second Circuit Court of Appeals held that a terminated in-house attorney plausibly alleged that she engaged in a protected activity when she refused to meet with her supervisor to discuss settling her pending harassment lawsuit.

In Newton v. LVMH Moet Hennessy Louis Vuitton Inc., Newton filed a lawsuit in 2019 alleging that she was sexually harassed and assaulted at work. In 2022, LVMH terminated Newton’s employment, and Newton filed a federal retaliation claim, alleging two actions after July 2022 that she argued were protected activity: (i) her refusal to meet with her supervisor to discuss settlement of the 2019 lawsuit, and (ii) speaking out in a public forum and on social media to assert her right to be free from sex discrimination in the workplace.…

The City of Philadelphia has amended its Fair Practices Ordinance to specifically protect employees from discrimination on the basis of menstruation, perimenopause and menopause.

This includes discrimination on the basis of reproductive health autonomy, whether based on pregnancy, childbirth and related medical conditions, or menstruation, perimenopause or menopause. The law further requires an employer to provide reasonable accommodation to an employee for needs related to menstruation, perimenopause or menopause if related symptoms substantially interfere with an employee’s ability to perform one or more job functions, absent undue hardship.…