Labor & Employment Law Update

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.

Under Wisconsin law, employees must first be the victim of identity theft or other concrete, imminent harm to have standing to sue employer for data breach. Mere risk of future data misuse is not enough to establish standing.

With AI transforming everyday HR operations comes major opportunities and significant risks for employers.  As these tools become more embedded in workplace decision‑making, they also raise serious concerns about fairness, accountability, and legal exposure. Understanding how AI works and where it can go wrong is now essential for any employer using or considering these technologies.

Our recent webcast explored these developments and offered practical guidance for employers implementing or considering AI solutions. Below are several high‑level takeaways.

Among a company’s most valuable assets is its intellectual property (IP). Though often intangible, IP—innovations, concepts, designs, processes, and more—offers companies a competitive edge in the marketplace. Protecting these assets is essential for safeguarding revenue, accelerating growth, and preventing competitors from gaining an unfair advantage—and your employees can be an inside threat.

Many employers hesitate to discipline or terminate for misconduct if the employee has recently engaged in protected activity, such as requesting FMLA, seeking an accommodation, or filing a complaint. Suspicious timing can easily lead to a retaliation claim, so the concern is understandable. But hesitation has costs too for an organization—no accountability for the misconduct, past practice is now undermined, and the employee is emboldened to commit more policy violations.

A federal appeals court has invalidated a National Labor Relations Board (NLRB) standard that eased a union’s path to recognition. On March 6, 2026, the Sixth Circuit U.S. Court of Appeals ruled that the NLRB overstepped its authority when it created a new framework for issuing bargaining orders in Cemex Construction Materials Pacific, LLC. For employers in the Sixth Circuit (Ohio, Michigan, Kentucky, and Tennessee), this ruling limits the NLRB’s ability to impose bargaining orders under the Cemex standard.

In our latest national state law update, we review state laws that have gone into effect or were enacted in 2026. Below is a non-exhaustive summary of major state laws that have gone into effect so far in 2026. Employers should be mindful of and continue to follow their state and local laws.

A proposed rule from the U.S. Department of Labor (“DOL”), published Feb. 26, could once again change how employers classify workers as employees or as independent contractors. With the constantly shifting tests and rules, every change, including the presently proposed DOL rule, creates the risk of mistakes that may expose businesses to audits, investigations, and lawsuits, potentially resulting in years of back pay and liquidated damages liability.

Ensuring compliance with the Americans with Disabilities Act (ADA) and state-level disability laws, which require covered employers to provide reasonable accommodations to qualified employees with disabilities unless doing so imposes undue hardship, remains a critical employer obligation. Despite decades of established guidance, ADA accommodation issues continue to drive a significant volume of claims and enforcement actions from the Equal Employment Opportunity Commission (EEOC) and state agencies. These disputes often arise not because employers refuse or are unable to provide accommodation, but because they mismanage the process or overlook key compliance steps.

Despite a new administration in D.C. and a push by the executive branch to reign in federal worker unions, the U.S. Bureau of Labor Statistics finally released figures showing that the percentage amongst all U.S. workers who were part of a labor union ticked up ever so slightly from 9.9 percent in 2024, to 10 percent in 2025. With respect to the private workforce, that percentage held at 5.9 percent (same as 2024).