Federal

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.…

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.…

A multinational technology and consumer-services company that is one of the largest employers in the world is facing a class action lawsuit in the Southern District of New York for alleged failure to comply with the Pregnant Workers Fairness Act (PWFA), a federal law.

The complaint, filed on September 8, alleges that the employer had an improper blanket policy requiring employees to submit medical documentation with all accommodation requests. However, EEOC regulations state that it is not reasonable or necessary for an employer to require supporting documentation from a pregnant employee seeking one of the following modifications due to their pregnancy: 

  1. carrying or keeping water near for drinking;
  2. taking additional restroom breaks;
  3. sitting, for those whose work requires standing, and standing, for those whose work requires sitting, as needed;
  4. taking breaks to eat and drink.
…

The U.S. Department of Health and Human Services has pushed back final action on its proposed overhaul of the HIPAA Security Rule from May 2026 to July 2027, giving covered entities and business associates additional time to prepare for what would be the first major update to the Security Rule since 2013. Employers that sponsor self-insured health plans should take note of the delay and consult with ERISA counsel on next steps to ensure their plans are in compliance.

The proposed rule, published in the Federal Register on January 6, 2025, would eliminate the distinction between “required” and “addressable” implementation specifications, mandate multi-factor authentication, expand encryption requirements, require comprehensive technology asset inventories and network mapping, extend documentation requirements, and impose detailed incident response and disaster recovery planning obligations, among other significant changes.…

The NLRB’s new General Counsel, Crystal S. Carey, just released Memo GC 26-04 and it’s a significant signal of where labor law enforcement is headed.

The Memo identifies some key positions she’s already taken, including seeking to overturn Biden-era precedents on severance agreements (McLaren Macomb), work rules (Stericycle), and captive audience meetings (Amazon). In the Memo, GC Carey signaled anticipated future challenges to Cemex bargaining orders, duty-to-bargain standards, and protections for employee conduct under Lion Elastomers.…

$5 Million EEOC Settlement Puts Disability Accommodation Practices in the Spotlight

The U.S. Equal Employment Opportunity Commission (EEOC) announced earlier this week that it reached a $5 million settlement with Battelle Energy Alliance resolving allegations that the company denied disability accommodation requests under its COVID-19 vaccine policy, made unlawful disability-related medical inquiries, and, in some…

Employers: A Cautionary Tale about Using AI Tools in Decision-making

Twenty-six current and former employees have sued a major technology company in California federal court, alleging it used biased artificial intelligence systems to select workers for a May 2026 layoff affecting roughly 10 percent of its workforce.

The plaintiffs claim the tools measured productivity and…

The U.S. Equal Employment Opportunity Commission (“EEOC”) announced today that it is rescinding its interpretive guidelines regarding affirmative action under Title VII and the affirmative action section of its compliance manual.

These guidelines had been in effect for approximately 40 years. The EEOC press release states that while the original purpose of the guidelines was…