Top 10 Labor, Employment, and OSHA Trends for 2026

1. Quorum and New NLRB 

The NLRB spent nearly all of 2025 without a quorum and was largely unable to handle its ordinary work. On December 18, 2025, the US Senate finally confirmed Trump appointees, James Murphy and Scott Mayer, as board members, and Crystal Carey as general counsel (GC), thereby restoring the three-member minimum needed for the Board to issue decisions. 

While it will take time for the newly functioning Board to handle its substantial case backlog, employers should expect friendlier standards in 2026 on the following issues:  

• Revisiting Cemex: The new Board and GC are expected to narrow significantly or even completely overrule Cemex, which currently prescribes onerous bargaining orders when an employer commits even a single unfair labor practice after declining to recognize a union claiming majority support. 

• Return to Traditional Remedies: In 2022, the Board issued its decision in Thryv, which markedly broadened its standard make-whole remedy to cover “all direct or foreseeable pecuniary harms.” In the wake of a circuit split, the new Board and GC are likely to narrow or overrule Thryv’s unnecessarily burdensome remedial framework and shift priorities away from broad consequential damages. 

• Swift Injunctions: In September 2025, acting GC William Cowen recommended that swift Section 10(j) injunctions be sought in “high-risk” unfair labor practice cases involving discharges during organizing, bad faith bargaining, or refusals to bargain by successor employers. 

• Captive Audience Meetings: As of late 2025, at least 12 states have now enacted laws restricting “captive audience” meetings, essentially prohibiting employers from convening mandatory meetings with employees involving religious, political, or unionization issues. Recent cases have reached similar results. The new Board is expected to clarify the bounds of lawful employer communications and focus on truly unfair conduct. 

• Handbook and Policy Enforcement: Employers should also expect clarification by the new Board of the Stericycle standard, under which a workplace rule is presumptively unlawful if a reasonable employee could read it as discouraging protected discussion unless narrowly tailored to a legitimate need. 

2. Pay Transparency Developments 

Pay transparency laws in Illinois, Minnesota, New Jersey, Vermont, and Massachusetts may pose challenges for multistate employers as requirements differ on coverage, content, timing, and reporting. 

Illinois 

Employers with 15+ employees must include the wage, salary, or range, plus a good‑faith description of benefits and other compensation. The Illinois Department of Labor provides that this requirement applies to all notices or publications for a specific employment opportunity that (1) will be physically performed, at least in part, in Illinois or (2) will be physically performed outside of Illinois, but the employee reports to a supervisor, office, or other work site in Illinois. If an employer conducts the hiring process without publishing a job posting, the employer must also disclose the pay scale and benefits to any applicant before making an offer of employment or discussing compensation, and upon request. Employers may satisfy the benefits-description requirement of the statute by providing a hyperlink to a publicly accessible webpage that specifies the pay scale and benefits for the particular position. 

Massachusetts 

Effective October 29, 2025, employers with 25+ employees must include pay ranges in postings and disclose ranges to employees for transfers, promotions, new roles, and on request. Employers with 100+ in‑state employees must submit EEO pay data for aggregated publication. For more information, please see our previous alerts on the topic: What Employers Need to Know About the New Massachusetts Pay Transparency Law and Navigating the Complexities of Pay Transparency Legislation.

Minnesota 

Effective January 1, 2025, employers with 30+ employees must disclose the starting salary range and a general description of benefits and other compensation in all job postings. Notably, the Minnesota statute explicitly requires covered employers to include in the job posting any health and retirement benefits. 

New Jersey 

Effective June 1, 2025, employers with 10+ employees for 20 or more calendar weeks that do business or take applications for employment within New Jersey must include in all internal and external job postings: (1) the hourly wage or salary of the position, or a range of the hourly wage or salary; (2) a general description of the benefits; and (3) any other compensation programs for which the employee would be eligible. Additionally, the state has proposed, but not yet finalized, departmental rules which would clarify, among other things, that the 10-employee threshold includes employees working both inside and outside New Jersey. 

3. Noncompete Legislation 

In 2025, noncompete legislation and enforcement remained a patchwork of federal and state activity. At the federal level, the Federal Trade Commission’s (FTC) 2024 proposed noncompete ban remained vacated after the agency, in September 2025, dismissed its appeal of the Northern District of Texas’ decision setting aside the rule nationwide. Even so, the FTC continued case-by-case enforcement against overbroad noncompetes, launched a Joint Labor Task Force, and issued warning letters, with a particular focus on health care employers. By contrast, the NLRB rolled back prior efforts to target noncompetes, signaling that broad NLRA-based challenges have been deprioritized under the current Administration. 

At the state level, Virginia expanded its ban to cover all Fair Labor Standards Act nonexempt workers effective July 1, 2025, and Wyoming broadly voided noncompetes entered after July 1, 2025, subject to narrow exceptions for executives and trade secret protections. In the opposite direction, Florida enacted the CHOICE Act, positioning Florida as one of, if not the most, employer-friendly states in noncompete and garden leave agreement enforcement. Health care-focused restrictions also expanded in Arkansas, Maryland, Louisiana, Texas, Utah, and others, often shortening approved duration or scope, or in some cases, voiding physician noncompetes altogether. 

Looking ahead, employers should audit their use of noncompetes and other restrictive covenants and update templates to reflect the rapidly evolving and jurisdiction-specific requirements governing noncompetes and related agreements. 

4. AI 

We expect AI in the workplace will be a continued focus for state and local governments in 2026. As set forth in last year’s trends article, the Trump Administration began 2025 with a rollback of Biden-era policies designed to address concerns about the use of AI in the workplace. The Trump Administration remained focused on AI in 2025 by releasing an AI “Action Plan.” The Action Plan highlights the Administration’s commitment to removing barriers to the use and implementation of AI, including in the workplace. 

Despite the federal government’s changes and focus, states and cities have considered and implemented laws that will impact employers’ use of AI in the workplace. For example, Colorado, Illinois, and New York City have laws that offer varying levels of protection against AI-related discrimination to applicants or employees. Likewise, on October 1, 2025, California’s Civil Rights Department implemented regulations to curb any discriminatory impacts of AI and automated decision-making software (ADS) in the workplace by expressly forbidding the use of “ADS or selection criteria that discriminate against applicants or employees.” 

The California legislature went one step further and passed two bills related to “robobosses” in 2025: Assembly Bill 1018 and Senate Bill 7. These were broad regulations that would have prevented employers from relying solely on automated systems to discipline or fire workers, and outright restricted AI from being used to interfere with union rights, predict worker behavior, or infer protected characteristics like religion. Both bills were vetoed by the governor, but we expect California and other states to continue considering and passing similar bills related to so-called AI “robobosses” in 2026.  

In light of these ongoing developments, AI policies and use of AI tools should be routinely monitored and audited, with particular focus on transparency, privacy, and discrimination concerns. 

5. California’s 2025 Legislative Session: Key Changes for Employers 

California’s 2025 legislative session produced sweeping changes to the state’s employment laws, many of which took effect on January 1, with additional deadlines and phased provisions extending later into 2026 and beyond. Employers with California workforces should carefully update handbooks, agreements, notices, recordkeeping, recruiting practices, compensation structures, and reduction-in-force planning to comply with these new requirements. 

Compensation and Pay Equity 

The state minimum wage has risen to $16.90 per hour. This increase has a waterfall effect on exempt salary thresholds. The salary threshold for most white-collar exemptions has climbed to approximately $70,304 per year. The computer professional exemption threshold has similarly increased to approximately $122,573. 

Pay transparency and equal pay obligations have expanded. The definition of “pay scale” now must reflect a good-faith range offered “upon hire,” and the definition of “wages” for purposes of equal pay analysis has been broadened to include all forms of compensation and certain benefits. The statute of limitations on equal pay claims has also been extended. Employers may also need to remediate job postings that do not conform to the updated disclosure requirements. Penalties for violations will shift from discretionary to mandatory in 2027. 

Agreements, Notices, and Workplace Policies 

California has also largely banned so-called “stay or pay” provisions — contractual clawback arrangements that require workers to repay training costs, signing bonuses, or similar amounts if they leave employment before a specified date. Violations carry new statutory damages, along with the potential for injunctive relief and an award of attorneys’ fees. 

Employers were required to post California’s model “Know Your Rights” notice by January 1 and to distribute standalone written notices to employees by February 1. Additionally, a new emergency contact rule requires employers to implement a process for employees to designate an emergency contact for the purpose of notifying them of the employee’s arrest or detention. The compliance deadline for the emergency contact implementation is March 30. 

Leave, Benefits, and Emerging Issues 

The legislature has expanded leave and victim protection laws to cover additional protected uses of both paid and unpaid time off. Employers must update their leave policies to include these new categories of protected leave. 

California has begun to address AI in the employment context. New whistleblower protections now cover developers working on frontier AI systems, and employers may be held liable for discriminatory outcomes that result from the use of automated decision-making tools in hiring and other human resources functions. 

Takeaways 

Employers should take prompt action to review and update pay agreements, job postings, and personnel files, and prepare operationally for a period of stricter regulatory enforcement across all of these areas. 

6. New York Employment Law Update 

New York State and New York City have rolled out significant workplace changes through late 2025 and into 2026, with additional deadlines and phased provisions later in 2026 and beyond. These changes affect hiring practices, wage and hour compliance, leave entitlements, employee retaliation protections, and reporting obligations. Employers should assess applicable policies, agreements, and timekeeping practices now to ensure timely compliance and to mitigate legal risks. 

Minimum Wage and Exempt Salary Thresholds Increase 

As of January 1, minimum wage increased to $17 per hour in NYC, Long Island, and Westchester, and $16 per hour elsewhere in the state. Additionally, the executive and administrative exempt salary thresholds increased $1,275 per week in NYC, Long Island, and Westchester, and $1,199.10 per week elsewhere in the state. 

‘Trapped at Work Act’ Bans Employment Promissory Notes 

The recently enacted “Trapped at Work Act” amends the New York Labor Law to ban the use of employment promissory notes and similar “stay-or-pay” training repayment provisions, with limited exceptions. The law applies broadly to employees, independent contractors, interns, volunteers, apprentices, and others providing services. Violations of this law may result in civil penalties, including the recovery of attorney’s fees.  

Reasonable Accommodation Anti‑Retaliation Protection 

New York recently amended the New York State Human Rights Law to crystalize that requesting a reasonable accommodation is protected activity, aligning state law with federal and New York City anti‑retaliation frameworks. 

Restrictions on Use of Consumer Credit History 

Beginning on April 18, most employers will now be prohibited from requesting or using consumer credit history for hiring or employment decisions, subject to narrow, role-based exceptions. 

NYC Expands Earned Safe and Sick Time 

As of February 22, NYC employers must provide a separate 32 hours of unpaid safe or sick time available immediately at hire and frontloaded each calendar year. This time is provided in addition to the existing 40 or 56 hours of paid earned safe and sick time. In addition, employees may now use paid and unpaid leave to provide care to minor children and other care recipients, attend legal proceedings related to housing or subsistence benefits, and for closures or restricted operations due to public disasters.  

Pay Data Reporting and Pay Equity Study for Large Private Employers 

NYC recently enacted legislation requiring private employers with more than 200 employees in the city to submit annual pay data reports to a designated agency and directing an annual pay equity study using that data. Although the measures took effect upon passage, employers need not act until the city designates a responsible agency and issues a reporting form. The study’s findings will be reported to city leadership, and employer pay report information will be published. 

Immediate steps: Review pay and classifications and revise as necessary, remove unlawful credit checks and “stay-or-pay” policies or agreements, and revise applicable leave policies and tracking. 

7. Immigration Update 

With all the new immigration rules introduced in 2025, employers must have open communication lines with their foreign national workers to ensure everyone has the knowledge and documents to make decisions in the best interest of the company. The current Administration has prioritized immigration compliance, and, thus, employers should as well. Employers should conduct proactive I-9 audits and correct I-9 errors so that they can take advantage of the good faith compliance defense in the event of a governmental investigation. They should consider enrolling in E-Verify so they get the presumption of compliance, an extra layer of assurance that their workforce is authorized, and are able to run reports to see if any TPS or parole employee’s work authorization status has changed (as most TPS and parole programs have been terminated, thereby terminating their work authorization). Protocols should be developed detailing how to respond to governmental raids and investigations, including informing the receptionist or front desk security, who to contact, and what to do. Employees should be instructed to consult with their company contacts before international trips to ensure they are able to go and return as planned, given the many travel bans and delays in Consular visa appointments. Employers should decide how to handle employees who are stranded abroad or ask to work abroad for a lengthy amount of time, implicating local employment and tax laws. Companies should consider policies regarding taking company computers and electronic devices on international trips as governmental officials are now often searching these devices. Employers should confirm with their H-1B employees that they are in the United States when applications are filed and will stay in the United States until they are approved to avoid the new $100,000 H-1B fee. The immigration climate is challenging, but employers and employees can adapt successfully as long as they are aware of the changing rules and discuss strategies to address them. 

8. Lense on DEI 

In a rapidly shifting legal environment, the DEI landscape is recalibrating toward compliance with new interpretations on longstanding anti-discrimination frameworks. Recent executive orders emphasize ending perceived “preferencing,” heightening scrutiny on programs that could be characterized as “illegal” DEI. Recent court developments increased scrutiny of race-conscious measures, lowered the harm threshold when stating a claim for discrimination, and revived “reverse” discrimination theories. Against this backdrop, “legal” DEI focuses on neutral, job-related practices that advance inclusion without conferring protected-class preferences. DEI in 2026 includes strategic, criteria driven hiring; opening affinity groups to all; transparent communication about objectives and processes; and routine self-audits to ensure policies are facially neutral, consistently applied, and documented. The bottom line: DEI has not gone away — it is just changing shape. It is a better time than ever to review your organization’s DEI-related policies, practices, and digital footprint to mitigate risk while ensuring the longevity of your DEI programs. 

9. EEOC Risk and Compliance 

As employers look ahead to 2026, two 2025 developments will shape EEOC risk and compliance: the US Supreme Court’s Ames decision and a Texas ruling curbing EEOC harassment guidance. 

The Supreme Court’s unanimous decision in Ames v. Ohio Department of Youth Services (June 5, 2025) dispelled the notion of “reverse” discrimination and rejected heightened prima facie burdens for majority-group plaintiffs under McDonnell Douglas. Title VII protects any “individual,” and courts may not impose special evidentiary hurdles based on group membership. In parallel, the EEOC’s acting chair publicly signaled heightened scrutiny of DEI practices and the agency’s commitment to dismantling identity politics. Employers should expect closer examination of hiring, promotion, and reduction-in-force processes, including preference schemes tied to DEI initiatives. 

Separately, a Texas federal court vacated portions of the EEOC’s 2024 harassment guidance that treated sexual orientation and gender identity as covered “sex” for harassment purposes, creating immediate, nationwide uncertainty around pronouns, facilities access, and related policy examples. While Price Waterhouse and Bostock remain controlling Title VII precedent, enforcement posture and guidance may continue to shift, and state and local protections still apply in many jurisdictions. 

Employers should monitor EEOC and court developments. In the meantime, align policies and training with applicable federal and state law and seek counsel on gender-identity and sexual-orientation complaints. While it remains unclear whether Ames will spur majority plaintiff litigation tied to DEI, now is the time to review DEI programs to ensure they are lawful. 

10. Tracking Federal OSHA’s Heat Injury and Illness Prevention Proposed Rule 

As we move into 2026, employers with employees who are potentially exposed to elevated temperatures will be tracking the progress of the Occupational Safety and Health Administration’s (OSHA) proposed rule governing heat injury and illness prevention. On August 30, 2024, OSHA published a Notice of Proposed Rulemaking (NPRM) for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, which would establish a federal heat standard applicable across all industry sectors where OSHA has jurisdiction. The standard contains numerous prescriptive requirements that would require employers to create a detailed plan to evaluate and control heat hazards in their workplaces. Although many expected the new Trump Administration to abandon the NPRM, OSHA held a public hearing in July 2025 and accepted public comments during a comment period that closed in October 2025. During the public hearing, OSHA signaled that it may make significant substantive changes to the proposed rule to reduce the number of prescriptive requirements and make it more performance-based, where employers have more leeway to determine the best steps necessary to comply. If a new final rule is issued, regardless of the form, we expect that it will be subject to legal challenge. AFS will continue to monitor developments in this area.