Labor & Employment Law Update

The U.S. Department of Labor’s (DOL) Wage and Hour Division recently issued three opinion letters addressing meal periods, tip pooling, and volunteer arrangements under the Fair Labor Standards Act (FLSA). Although the letters arise from hospitality, detention facility, and nonprofit settings, each provides practical guidance for employers reviewing their wage and hour compliance practices. Employers should take the opportunity to ensure their meal break, tip pooling, and volunteer policies align with the DOL’s latest interpretations.

Most employers assume a handbook policy is lawful if it serves a legitimate business purpose. However, that assumption can create risk under the current National Labor Relations Board standard. Even in nonunion workplaces, policies that appear reasonable may draw scrutiny if employees could interpret them as restricting rights protected by the National Labor Relations Act.

For employers this means an outdated handbook can become evidence in an unfair labor practice investigation. That’s why every employer should pay attention to the case that set the current standard: Stericycle.

On September 23, 2026, the National Labor Relations Board (NLRB or Board), in its decision in Lion Elastomers III, has acknowledged that its prior decision in Lion Elastomers II is no longer (and, really, never was) valid as establishing the standard by which to determine whether an employer may lawfully discipline or discharge an employee for engaging in abusive behavior, if that behavior is also tied to the employee’s protected, concerted activities (such as during a union organizing campaign, picketing, or when advocating for changes to employees’ terms and conditions of employment). 

The Equal Employment Opportunity Commission (EEOC) recently proposed eliminating the requirement for covered employers to provide workforce demographic information through the annual EEO-1 Report. If finalized, the change would reduce a longstanding federal reporting obligation for many employers.

However, employers should not assume that elimination of the report will make workforce demographic information irrelevant. To the contrary, employers may have good reasons to continue collecting and analyzing this information, even if they no longer have to submit it to the EEOC.

Wisconsin has updated its child labor regulations, prompting employers that hire minors to review their compliance practices.

Effective June 1, 2026, the Wisconsin Department of Workforce Development (DWD) implemented Administrative Rule CR 26-015, a comprehensive update to the state's child labor regulations. The rule revises Chapter DWD 270, repeals Chapter DWD 271, and reorganizes numerous provisions governing the employment of minors and street trades. 

Employers may have more flexibility to enforce neutral dress code and uniform policies, even when those policies affect employees' display of union insignia. On September 2, 2026, in a decision involving Starbucks’ New York Reserve Roastery, the Second Circuit rejected the NLRB’s stringent standard to workplace rules that restricts employees’ ability to display union insignia under its Tesla decision. The court concluded that the Board’s Tesla standard did not adequately balance employees’ rights with an employer’s legitimate business interests.

For employers, this is a significant development, but not a nationwide green light to restrict union apparel. While the decision does not eliminate employees’ rights to display union messages or overrule Tesla nationwide, it signals growing judicial skepticism of the Board’s restrictive approach. 

Employers acquiring a business with a unionized workforce may soon have more flexibility to challenge the incumbent union's status than they have had for decades. On July 21, the D.C. Circuit held in Hospital Menonita de Guayama, Inc. v. NLRB that the National Relations Labor Board (NLRB ) never had the authority to impose its “successor bar” doctrine, a rule that generally requires a successor employer to continue bargaining with an existing union for up to a year after an acquisition. As one of the first appellate decisions to reject an NLRB doctrine since the U.S. Supreme Court ended automatic deference to federal agencies, other doctrines built on similarly thin statutory footing may be next.