Workforce Bulletin

What employers should know about key developments this week:

• National Labor Relations Board (NLRB) Sets New Enforcement Priorities: NLRB General Counsel Crystal Carey directed regional offices to prioritize the resolution of current cases over initiating new enforcement actions.
• Department of Labor (DOL) Targets Non-Union Workplaces: In an internal memo, DOL Solicitor of Labor Jonathan Berry emphasized that enforcement would focus on non-unionized environments, noting that unions were better equipped to address issues in unionized workplaces.
• Equal Employment Opportunity Commission (EEOC) Cracks Down on Diversity, Equity, and Inclusion (DEI) Policies: EEOC Chair Andrea Lucas issued a warning that preference-based diversity policies may violate Title VII of the Civil Rights Act of 1964 and signaled a return to systemic investigations and large-scale litigation.

On March 6, 2026, the U.S. Court of Appeals for the Third Circuit issued a significant decision clarifying how discrimination claims brought by majority-group plaintiffs should be analyzed under the New Jersey Law Against Discrimination (NJLAD). In Massey v. Borough of Bergenfield, the court concluded that majority-group plaintiffs should not be required to satisfy the “background circumstances” rule—a doctrine that imposed a heightened burden on plaintiffs alleging discrimination against majority groups. In reaching that conclusion, the court, predicting that the New Jersey Supreme Court would do the same, relied on the U.S. Supreme Court’s decision in Ames v. Ohio Department of Youth Services, which rejected the background circumstances rule in Title VII of the Civil Rights Act of 1964 (Title VII) cases. Massey marks the first federal appellate decision to apply Ames to state law.

On March 6, 2026, the Division of Corporation Finance at the Securities and Exchange Commission (SEC) issued new and updated Compliance and Disclosure Interpretations (CDIs) for private and foreign companies issuing equity compensation in reliance on Rule 701 to their employees, officers, directors, and certain consultants and advisers.

What employers should know about key developments this week:

• NLRB Reinstates 2020 Joint Employer Rule: Under the National Labor Relations Board’s (NLRB’s) rule, a company is a joint employer only if it exercises substantial, direct, and immediate control over at least one of an employee’s key employment terms.

• Employer Liability Outlook: The risk of joint-employer liability is lower without direct involvement in core employment decisions.
• DOL Proposes New Independent Contractor Rule: The U.S. Department of Labor’s (DOL’s) new proposal revives the 2021 standard, emphasizing economic realities and the actual practices of the parties rather than just the contractual agreements.

In this episode of Employment Law This Week^®, Epstein Becker Green attorneys Erin E. Schaefer and Jeffrey H. Ruzal provide insights on the NLRB and DOL regulations, examining what these developments mean for employers.

In a recent decision from the Business Litigation Session of the Massachusetts Superior Court, Laughlin v. BinStar, Inc., the court held that the Massachusetts Paid Family and Medical Leave Law (PFML) does not impose individual liability and does not recognize aiding-and-abetting claims. The decision highlights key differences between the PFML and other laws covering Massachusetts employers, and holds that, unlike statutes that expressly permit claims against individual corporate officers and agents, the PFML limits liability to the employer entity itself.

This week, we examine significant regulatory shifts affecting employers in New York City, California, and Pennsylvania, as aggressive local enforcement strategies and expanding interpretations of background check laws cause compliance obligations to evolve rapidly. Find out more in this episode of Employment Law This Week®.

What employers should know about key developments:

• New York City’s Enforcement Blitz: The city’s Department of Consumer and Worker Protection is cracking down on violations of the Protected Time Off Law, issuing warnings to 56,000 employers. Non-compliance risks hefty penalties for employers.
• California Investigates Price Manipulation: California is probing “surveillance pricing,” in which companies use prospective customers’ personal data to adjust prices, potentially violating the Consumer Privacy Act. The state is focusing on the retail, grocery, and hotel industries.
• Pennsylvania Expands Background Check Law: A U.S. Court of Appeals for the Third Circuit ruling broadens Pennsylvania’s Criminal History Record Information Act to include restrictions and notice requirements, even for voluntarily disclosed criminal history.

On February 26, 2026, Andrea Lucas, Chair of the U.S. Equal Employment Opportunity Commission (EEOC), sent a pointed letter to Fortune 500 CEOs, General Counsels, and Board Chairs, to remind them of their obligations under Title VII of the Civil Rights Act of 1964.

On January 22, 2026, the Equal Employment Opportunity Commission (EEOC) voted 2-1 to rescind its “Enforcement Guidance on Harassment in the Workplace” (the “Guidance”), originally issued in 2024. The rescission prompted federal lawmakers to introduce legislation that – among other things – would amend Title VII of the Civil Rights Act of 1964 (Title VII) to broaden its definition of sex to expressly include sexual orientation, gender identity, sex stereotypes, sex characteristics, and pregnancy, childbirth, or related medical conditions. While the elimination of the Guidance does not mean that the EEOC no longer recognizes harassment as a form of discrimination,[1] employers may be wondering how the Guidance came to be rescinded, and what this development means for them.

[1] The Supreme Court of the United States established this principle in 1986. Meritor Savings Bank v. Vinson.

New York City employers are facing significant new compliance obligations with the newly effective amendments to the Earned Safe and Sick Time Act (ESSTA) now mandating 32 hours of unpaid leave in addition to existing paid leave entitlements, as explained in detail by our colleagues here.

On January 20, 2026, two job applicants filed a class action lawsuit against Eightfold AI Inc. (“Eightfold”) alleging that Eightfold, an AI-driven hiring platform used by major employers, violated the Fair Credit Reporting Act (“FCRA”) and California’s Investigative Consumer Reporting Agencies Act (“ICRAA”) by secretly generating AI-driven applicant “likelihood of success” scores based on a 0-5 scale and dossiers functions as illegal, undisclosed consumer reports.