United States: Employment Litigation/ Tribunals

The National Labor Relations Board has reinstated the General Motors standard for analyzing when employee offensive conduct loses protection under the National Labor Relations Act, replacing the Biden-era Lion Elastomers decision. This shift returns to a burden-shifting framework that focuses on employer motive rather than context-specific tests, potentially making it easier for employers to discipline workers for inappropriate language or behavior.

The EEOC filed only 97 merit lawsuits in fiscal year 2026, marking another year of historically low litigation activity despite regaining its quorum and new leadership under Chair Andrea Lucas. While overall filing numbers remained subdued, the composition reveals a strategic shift toward religious discrimination claims, pregnancy-related litigation, and majority-group discrimination cases that align with the Trump Administration's enforcement priorities.

Maryland's new Worker Freedom Act restricts mandatory employer meetings on political and religious matters, extending protections to both employees and job applicants. The law creates an administrative enforcement process with penalties up to $25,000 for violations, while legal challenges to similar state laws continue on First Amendment and NLRA preemption grounds.

A Cruise employee injured while off-duty in an autonomous vehicle as a customer sued the company, which sought arbitration under both employment and customer agreements. The trial court denied arbitration, but the Court of Appeal reversed, finding valid assent to the online arbitration provision through a clear sign-in wrap process and extending coverage to related entities based on agency and alter ego allegations.

A California Court of Appeal issued a peremptory writ of mandate directing a trial court to vacate its order compelling arbitration in an employment dispute. The court found that the arbitration clause in the employment agreement was too narrow to cover the employee's statutory discrimination, accommodation, and retaliation claims, as these arose from public policy protections rather than contractual interpretation or breach.

On September 30, 2026, the Second Circuit (covering New York, Connecticut, and Vermont) held that when an employee’s lawsuit includes a sexual harassment or sexual assault claim covered by the Ending Forced Arbitration Act (EFAA), the employee may choose to litigate the entire lawsuit in court, including unrelated claims that would otherwise go to arbitration. Diaz-Roa v. Hermes Law, PC (2d Cir. 2026).

New York recently enacted a law that, among other things, requires employers to provide current and former employees with a copy of their personnel records upon the employee’s request.

The National Labor Relations Board's Division of Advice recently issued a memorandum concluding that a major software company lawfully terminated employees who organized a Gaza war protest at company headquarters. The Division determined that the protest lacked sufficient connection to workplace conditions to qualify as protected concerted activity under federal labor law, despite employee claims that the company's Israeli government contracts affected their working environment.

The Iowa Supreme Court recently addressed whether a workers' compensation claimant who settles with their employer through a compromise agreement can pursue subsequent claims against the Second Injury Fund. The decision clarifies critical distinctions between settlement types and their impact on establishing employer liability for permanent disability. Understanding how settlement language affects future claims is essential for both claimants and defendants navigating Iowa's workers' compensation system.