Labor & Employment Law Update

The Equal Employment Opportunity Commission (EEOC) formally rescinded the federal guidance employers have relied on for nearly 50 years when designing voluntary affirmative action plans under Title VII. In a June 29 vote, the EEOC voted to rescind the two documents that provide a long-standing roadmap for employers. This move follows the EEOC’s recent National Enforcement Plan (NEP), which signaled that the agency would treat race- and sex-conscious workplace programs as intentional discrimination. Although U.S. Supreme Court caselaw remains unchanged, the rescission narrows federal enforcement posture. As a result, employers with voluntary affirmative action plans, diversity initiatives, or other programs tied to protected characteristics should review those programs now to ensure they are justifiable under existing law.

On June 4, the U.S. Equal Employment Opportunity Commission issued a new National Enforcement Plan (NEP), effective immediately, replacing the Biden-era Strategic Enforcement Plan. The NEP realigns federal enforcement around the current administration’s priorities and signals a significant shift in how workplace discrimination claims will be investigated and litigated. For employers, the change reshapes where federal risk will change and diverge from state law obligations.

The Ninth Circuit has warned employers that introducing a mandatory arbitration agreement during active class litigation, particularly when done through poor or misleading communication, can invalidate the agreement entirely. In Avery v. TEKsystems, decided January 28, 2026, the court affirmed a district court order refusing to enforce an arbitration policy introduced late in the lawsuit. The court found that the communications used to roll it out were misleading, one-sided, and fundamentally subverted the class action process.

There is a growing circuit split between the Third and Fifth circuits over whether employers can block National Labor Relations Board (NLRB) proceedings while raising constitutional challenges. The disagreement centers on the Norris-LaGuardia Act (NLGA), a nearly century-old law designed to keep federal courts out of labor disputes, which is driving one of the biggest fights in labor and employment law at the moment. With two circuits now at odds, Supreme Court review is increasingly likely and the question is deceptively simple: Can a federal court order the NLRB to stop its proceedings while a lawsuit challenging the Board’s constitutionality plays?

On August 19, 2025, the Fifth Circuit Court of Appeals upheld injunctions barring the National Labor Relations Board (NLRB) from prosecuting unfair labor practices (ULP)/charges against three employers, including Space X. This decision stems from the constitutional challenges to the way the NLRB is structured and raises broader questions about the current structure of the NLRB.