FP FORECAST 2026 Your Workplace Law Guide 2025 Recap + 2026 Predictions
TABLE OF CONTENTS
AS WE WRAP UP 2025 AND LOOK TOWARD 2026, ONE THEME RISES ABOVE THE REST: employers are navigating a workplace landscape that is more volatile, more tech-driven, and more globally interconnected than ever before. From sweeping regulatory shifts to the acceleration of AI, the past year brought rapid change at a pace few could have imagined. And we’re proud our team was there to help you meet each challenge head-on. That’s why the FP Forecast remains one of our most valuable resources. In the pages that follow, you’ll find clear, practical summaries of the major developments that reshaped the workplace in 2025, along with the action steps employers should take to stay compliant, competitive, and resilient. You’ll also see our attorneys’ best predictions for 2026 across just about every practice area and industry we serve. These insights come directly from the people who are working side-by-side with you every day: defending complex litigation, crafting compliance strategies, negotiating with regulators, guiding high-stakes transactions, and helping your workforce thrive. Amid all this turbulence, one thing remains constant: you can count on us to bring clarity. Our goal is to help you understand what happened, prepare for what’s coming next, and build the strategies you need to succeed in 2026 and beyond. We hope you enjoy this year’s FP Forecast and use it as a roadmap for the year ahead. And as always, we’ll be ready to support you every step of the way with the sharp, practical, business-minded guidance you’ve come to expect from Fisher Phillips. Here’s to navigating what comes next, together.
Intro Government Relations DEI and EEO Immigration AI, Data, and Analytics Litigation and Trials
Life Sciences and MedTech Employee Benefits and Tax PEO Practice Group Staffing Tech Sector Healthcare Manufacturing Hospitality Retail Automotive Dealership Agriculture Construction Sports Non-Profit and Tax-Exempt Organizations Energy Education
Labor Relations Wage and Hour Workplace Safety California Privacy and Cyber Data Protection Employee Defection and Trade Secrets Pay Equity and Transparency Government Contracting, Compliance, and Reporting International Japan Mexico Reputation and Crisis Management
John Polson Chairman and Managing Partner Fisher Phillips
GOVERNMENT RELATIONS
PREDICTIONS FOR 2026
2025 PREDICTIONS RECAP
Democrats Will (Probably) Retake the House… We expect the Democrats to retake the House based on the conventional wisdom that the party in power loses seats in Congress during a midterm election cycle. But we’re hedging our bets because of multiple statewide redistricting efforts that could throw a wrench into things – and a pending SCOTUS case that could overturn the Voting Rights Act and boost the GOP’s odds of maintaining control. What started with Texas lawmakers taking the unprecedented step of redrawing the state’s congressional maps midcycle has now spread to a handful of other states and is expected to continue into 2026. Beyond Texas and California, we’re keeping our eyes on North Carolina, Ohio, Missouri, Utah, Florida, Kansas, Maryland, Indiana, and Virginia. …and Republicans Will (Probably) Maintain the Senate We also expect Republicans to maintain control of the Senate, even if Democrats overperform the electorate
Initial Shock Over Labor Department Leader Nomination Waned
President Trump’s selection of Lori Chavez-DeRemer as Secretary of Labor surprised many DOL watchers given her past support of the union-friendly PRO Act. However, we correctly predicted that any concerns about her ties to organized labor would be brushed aside once she got to work. As expected, Chavez-DeRemer has backed Trump’s agenda, reversing her previous stances supporting programs like Job Corps and backing his concerns about data from the Bureau of Labor Statistics being inaccurate. She has spent most of her tenure on the road as part of an “America at Work” tour, promoting the administration’s policies and visiting various training facilities and worksites across the country. While Republicans captured back the White House and the Senate and retained a House majority, we accurately predicted that conservatives wouldn’t have the easiest time advancing their Congressional wish list. Take for example cutting federal spending. Disagreements over funding the government for 2026 led to the longest shutdown in history. And despite efforts to pass a federal ban on state AI legislation, lawmakers ultimately rejected the proposal – mostly due to disagreement within the GOP. Republican Trifecta Didn’t Lead to Many Congressional Gains As we correctly predicted, Republicans were able to pass a fair number of business-friendly initiatives through the Budget Reconciliation process, an expedited way to pass legislation dealing with spending. Lawmakers advanced two major campaign policies promoted by the president – reducing tax burdens on OT and tipped pay – but largely because the more- populist effort garnered support from Democrats as well. Administration Used Procedural Weapons
as they did in 2025. With few pickup opportunities and a handful of open seats, Democrats have an uphill battle. While the GOP is defending more seats, the majority of those are rated “Safe Republican” according to the nonpartisan Cook Political Report. Key Senate races to watch include North Carolina, Georgia, Michigan, Iowa, Maine, and Ohio. 2026 Will Be a Continuation of 2025… With an Emphasis on Speed The second Trump administration has been operating at a breakneck pace and there are no signs of that changing next year, especially with control of Congress on the line. The White House is aware that their agenda would face additional roadblocks if they were to lose control of either the House or the Senate, so there will be concerted effort to move forward with the president’s priorities as soon as possible. This includes confirming judges to benches across the country (and potentially the Supreme Court if Justices Thomas or Alito retires), continued deportation efforts (especially given ICE’s boosted budged), and reducing the size of the federal government.
Benjamin M. Ebbink Sacramento/Washington, D.C. Partner, Co-Chair
Rick Grimaldi Philadelphia/Washington, D.C.
New Jersey/Cleveland Partner, Co-Chair
OUR PREDICTIONS WERE CORRECT
HOW DID WE DO?
Braden Lawes Washington, D.C. Senior Government Affairs Analyst
BACK TO HOME
DEI AND EEO COMPLIANCE
PREDICTIONS FOR 2026
2025 IN REVIEW
Sharper Focus on DEI-Related Enforcement The EEOC will pay close attention to employer DEI programs. Recent guidance from the agency clearly signals that more investigations are coming, particularly regarding alleged race- or sex-based preferences in hiring, promotions, and training. Consider conducting an audit with counsel to ensure your programs are compliant. Surge in Litigation Challenging DEI Policies
New Administration Initiated Dramatic Shifts to DEI Policy Here are some of the major moves made in 2025: • President Trump issued an executive order in January directing federal agencies to combat “illegal” corporate DEI initiatives. • The President also immediately installed Andrea Lucas – an avowed opponent of illegal DEI – as Acting Chair of the EEOC and ousted two Democratic Commissioners. These two moves set the stage for the agency to focus on DEI programs at private organizations. • For federal contractors, Trump revoked an executive order that mandated race- and gender-based affirmative action requirements for federal contractors and subcontractors through the OFCCP and promoted DEI programs. • The EEOC issued joint guidance with the DOJ in March on what may constitute “unlawful discrimination” related to DEI in the workplace and provided a roadmap for employers. • The DOJ released guidance and suggested best practices in July reminding all federal agencies and recipients of federal funding that programs should not discriminate based on protected characteristics “no matter the program’s labels, objectives, or intentions.” Some States Reaffirmed Diversity Message in Response In February, 16 Democratic state attorneys general issued joint guidance reaffirming their position that workplace DEI initiatives remain legal – and important to the modern workplace. The guidance signed by AGs from traditionally “blue” states directly responded to the Trump administration’s executive orders and other actions taking aim at corporate DEI programs. The Supreme Court Weighed in on “Majority Group” Discrimination SCOTUS unanimously ruled in June that plaintiffs alleging Title VII discrimination are not required to meet a heightened evidentiary standard just because they are part of a majority group. This significant decision, which does away with extra steps for so-called “reverse” discrimination claims, will most likely result in an increase in workplace bias claims.
Expect more litigation challenging DEI programs, including lawsuits filed by employees claiming discrimination against a majority group or alleging unlawful training programs. Be sure to review your content and processes to safeguard against such claims. Companies Will Revamp Their Communications and Activities Many organizations are reassessing both internal and external DEI messaging, particularly since federal agencies may publicly name companies that are perceived to be out of compliance. Expect more employers to revise their programs under broader initiatives promoting positive workplace culture and inclusivity for all employees.
Regina Petty Los Angeles/San Diego Partner, Chief Diversity Officer
Sheila M. Abron Columbia Partner
Raymond W. Perez Birmingham/Columbus/Washington, D.C. Of Counsel
Jennifer B. Sandberg Fort Lauderdale/Atlanta Regional Managing Partner
BACK TO HOME
PREDICTIONS FOR 2026
2025 PREDICTIONS RECAP
IMMIGRATION
We’ll See an H-1B Lottery Overhaul We predict that DHS will replace the current random H-1B cap lottery with a weighted selection system that gives higher-wage positions better odds of being chosen, potentially as soon as the March 2026 cap season. Even if litigation slows implementation this coming year, it’s likely to take effect during this administration. The change will heavily favor employers able to offer Level III–IV wages, making it harder for startups, non-profits, and entry-level roles to secure visas. This will force many organizations to rethink compensation strategies and diversify their global- talent pipelines. OPT/STEM OPT Restrictions Will Reshape Early-Career Hiring We predict the administration will release a rule ending or sharply limiting Optional Practical Training – including the 24-month STEM OPT extension. If finalized, the impact could be seismic: • University recruiting pipelines could be hit hard, especially for engineering and tech-heavy industries. • Employers would need to shift toward O-1, TN, H-1B1, and J-1 research trainees to retain foreign graduates. Domestic upskilling and apprenticeship programs would need to surge to fill gaps. Even the initial announcement would deter international students from enrolling – shrinking future talent pools. Employers should plan now for what your entry-level hiring model looks like without OPT.
AI-Powered Enforcement Will Become the Defining Immigration Story of 2026 The deployment of ImmigrationOS will mark a turning point for employer compliance. ICE, DOS, USCIS, and DOL will soon operate within a fully integrated, AI- driven enforcement ecosystem capable of triggering cascading consequences from a single data point. Expect more I-9 investigations (especially tied to remote-verification errors and payroll mismatches), instant visa revocations (often without human review) triggered by arrests,
We predicted President Trump to focus on immigration enforcement, and we were certainly right – especially when it comes to audits and workplace raids. ICE dramatically expanded work-site audits, launched more coordinated raids, and increased pressure on employers to tighten verification practices. Multi-agency enforcement became the norm, with DHS, DOL, and DOJ sharing information more aggressively than in prior years. Our Employer’s Playbook For ICE Audits And Workplace Raids provides a detailed checklist and summarizes how federal agencies intensified work-site investigations, I-9 audits, and targeted operations in 2025. We Saw Heightened Immigration Enforcement
There Was Intense Scrutiny of Work Authorization and Visa Programs
address discrepancies, SEVIS irregularities, or social-media flags, and data-matching sweeps across IRS, SSA, DMV, and passport systems pulling employers into audits they didn’t
We also expected heightened scrutiny of visa programs and employment authorization, and 2025 delivered. The Supreme Court backed the administration’s authority to terminate work authorization for certain foreign nationals, immediately disrupting workforce planning for employers relying on affected programs. The Court also allowed the administration to end TPS for Venezuelans, triggering churn in industries with significant TPS-authorized workforces.
Jocelyn Campanaro Denver Partner, Co-Chair
OUR PREDICTIONS WERE CORRECT
anticipate. Expect More Visa
HOW DID WE DO?
Revocations and Status Whiplash The State Department revoked roughly 40,000 visas in 2025 – double the prior year – and that trajectory will continue in 2026. Revocations will increasingly stem from minor criminal
MORE FROM 2025 $100,000 H-1B Fee and New Employer Guidance
David S. Jones Memphis Regional Managing Partner, Co-Chair
End to Automatic Work-Permit Extensions Federal immigration officials issued an interim final rule ending the long-standing automatic extension (“540-day grace period”) for Employment Authorization Documents (EADs) filed for renewal. The change took effect in October and means that foreign nationals may lose work eligibility if their renewal isn’t adjudicated in time. Employers now face heightened risk of labor- shortages and unplanned termination exposure, and must tighten internal tracking of renewal deadlines.
The administration announced a sweeping change to the H-1B visa program: a one-time $100K fee for each new H-1B petition filed after September 21, 2025, plus accompanying policy guidance and relief measures for existing holders. The move dramatically alters the economics of sponsorship for many employers – especially in tech, engineering, and staffing sectors.
Shanon R. Stevenson Atlanta Partner, Co-Chair
arrests, perceived “inconsistencies” in DS-160 or I-983
forms, online speech, automated SEVIS flags, and employer-level audits triggered by Project Firewall.
BACK TO HOME
AI, DATA, AND ANALYTICS
dispute emerge in May when a union claimed that a gaming company’s use of an AI-voiced Darth Vader character unlawfully replaced a human voice actor, and yet another claim in August that an AI-powered hiring tool led to hiring discrimination. Privacy-Related Litigation Emerged as a Business Threat 2025 also saw two new litigation threats emerge. Any business using AI to monitor or record customer service calls needs to track the California lawsuit filed in June alleging a violation of state wiretapping laws. And an August lawsuit against a tech company underscores the legal and compliance risks companies face when using AI notetakers.
2025 PREDICTIONS RECAP
Just as we predicted, the Trump administration revoked Biden’s regulatory-focused AI Executive Order in January and instead went all-in on innovation. July’s “AI Action Plan” identifies a slate of policy goals that aim to achieve “global AI dominance” in infrastructure, international diplomacy, and security. Feds Loosened the Reins on AI Regulation We correctly predicted that Congress wouldn’t pass any substantive AI regulation. In fact, the exact opposite almost happened. Federal lawmakers pursued but then dropped a law in July that would have cleared the decks and blocked or dissuaded states from regulating AI. Congress Didn’t Regulate AI Last year we wondered whether AI would become your life coach and therapist – and we couldn’t have been more right. Harvard Business Review revealed that the top use of GenAI in 2025 was “therapy and companionship,” overtaking idea generation, organization, and learning. AI Became Your New Best Friend
PREDICTIONS FOR 2026
Colorado and Virginia Will Take Different Regulatory Paths
Colorado’s landmark AI law will not take effect in 2026, as legislators, regulators, and stakeholders delay things to renegotiate. But Virginia will take another crack at AI lawmaking, this time aiming to regulate healthcare transparency and exposure. California’s ADMT Regulations Will Make AI Governance a National Standard Gearing up for CPPA regulations to take effect in 2027, businesses will need to grapple with risk assessments, cybersecurity audits, pre-use notices, opt-out rights, and annual cybersecurity audits in 2026. And most multistate businesses will choose to comply with this stringent standard by adopting an AI governance program as table stakes. Bias Audits Will Become a Must-Have for Employers Even without a federal AI law, plaintiffs’ attorneys are already using the absence of an audit as evidence of negligence or discriminatory design. Learn more about FP’s AI Bias Detection and Mitigation Program here. Congress Will Still Be Talking About AI, Not Passing a Comprehensive Law Despite urging from the White House, Congress will not pass a comprehensive federal AI statute in 2026. Instead, employers will face a growing patchwork of state and local laws – and growing expectations that they need to align with recognized frameworks (like NIST’s AI risk management principles).
Usama Kahf, CIPP/US Irvine Partner, Co-Chair
OUR PREDICTIONS WERE CORRECT
HOW DID WE DO?
David J. Walton, AIGP, CIPP/US Philadelphia Partner, Co-Chair
MORE FROM 2025 States Acted, With Mixed Results
You can read all about the slate of regulations and new AI-related laws that California passed (and didn’t) pass in our California section . But we also saw action in Texas and Virginia in 2026, where an AI law passed the legislature but was vetoed by the governor in March (more on what we expect below). Workplace Disputes Heated Up
Erica Given Pittsburgh Partner, Vice Chair
The massive AI litigation we’ve been tracking since 2024 took a turn in May when a judge allowed a job applicant’s lawsuit against Workday to move forward as a nationwide class action, ruling that the company’s AI-powered hiring tools may have had a discriminatory impact on older applicants. But we also saw a labor
BACK TO HOME
AI Tools Drove Up Claims by Pro Se Plaintiffs and Small Plaintiffs’ Firms The use – or, more aptly, misuse – of generative AI programs in the preparation of court filings skyrocketed this year among pro se plaintiffs and small plaintiffs’ firms. This reality required many in-house counsel teams to budget more money due to the significant increase of claims brought by pro se plaintiffs. It also led many courts to establish standing orders banning the use of GenAI tools in the preparation of court filings and sanction parties for submitting filings riddled with inaccuracies and non-existent cases attributed to AI “hallucinations.”
LITIGATION AND TRIALS
2025 PREDICTIONS RECAP
PREDICTIONS FOR 2026
Just as we predicted, the Supreme Court ruled that employers need only meet a “preponderance of evidence” standard – and not a heightened “clear and convincing” standard” – in order to prove they properly classified employees as exempt under federal wage law. The January decision was a win for businesses and sets a consistent national standard under the Fair Labor Standards Act. Supreme Court Rejected Higher Standard of Proof in OT Exemption Cases We also correctly predicted that SCOTUS would establish a bright-line rule for determining whether certain civil rights plaintiffs are eligible for fee awards as “prevailing parties.” We covered how the Court’s February decision in a driver’s license case could impact employers in litigation matters – in both positive and negative ways. SCOTUS Made It Harder for Civil Rights Plaintiffs to Recover Attorneys’ Fees
Disparate Impact Claims Will Decrease – But Majority-Group Bias Claims Will Rise President Trump issued an executive order in April that aims to eliminate the use of disparate impact liability in all contexts to the maximum extent possible – potentially giving employers new leverage against disparate impact claims (which employees may still bring under federal and state law). However, the Trump administration’s anti-DEI stance, along with a Supreme Court decision in June scrapping an extra hurdle for “majority-group” discrimination claims, will lead to a rise in similar workplace bias claims in many parts of the country. Increased State-Level Litigation and Enforcement As many states work to fill perceived gaps created by federal deregulation, we will see a major uptick in state-level litigation and enforcement of workplace law claims. You should also stay tuned for more court challenges over states’ attempts to step into areas of federal oversight, such as the NLRB’s recently filed lawsuits against California and New York for attempting to expand their power to regulate private sector labor.
AI-Generated Evidence Will Become a Core Discovery Battlefield In 2026, AI-generated ESI – especially from AI notetakers, meeting summaries, auto-drafted emails, and chat assistants – will be routine in litigation. Parties will be fighting over accuracy, admissibility, consent, privilege, preservation obligations, and more. New Litigation Danger as Employees Claim Green Card Favoritism Discrimination claims are rising against employers accused of favoring foreign national workers over US workers. Attorneys from our Immigration Practice Group spotted this new litigation danger earlier this year, and we don’t see it going away in 2026.
Todd Alan Ewan Philadelphia/Pittsburgh Partner, Co-Chair Litigation Practice Group
Suzanne Kelly Michael Seattle/Portland, OR Partner, Co-Chair Litigation Practice Group
OUR PREDICTIONS WERE CORRECT
HOW DID WE DO?
MORE FROM 2025 Supreme Court Significantly Limited Courts’ Power to Issue “Universal” Injunctions
Karl R. Lindegren Irvine/Los Angeles/Portland, OR Partner, Co-Chair California Litigation Practice Group
In a decision that is sure to have reverberations for employment law for years to come, the Supreme Court held in June that district courts cannot issue injunctions that are broader than necessary to provide complete relief with respect to each plaintiff who has standing to sue. These so-called “universal” injunctions came under increasing fire over the past decade as they frequently stalled workplace-related policies for both Republican and Democrat administrations. Want more SCOTUS? Check out our Employer Impact Guide to the Supreme Court’s 2024-2025 Term, as well as our Employer Preview of Top Supreme Court Cases to Watch This Term.
Kristen J. Nesbit Los Angeles Co-Regional Managing Partner, Co-Chair California Litigation Practice Group
BACK TO HOME
LABOR RELATIONS
PREDICTIONS FOR 2026
2025 PREDICTIONS RECAP
Safe Prediction Assuming the Board returns to a legal quorum with a confirmed GC by early 2026, it will likely seek to overturn several significant Biden-era cases over the months thereafter. Among those rulings likely targeted for reversal, even in the absence of a full complement, are Stericycle (restrictions on workplace conduct rules), Thryv (remedies available for unfair labor practices), Cemex (bargaining order in response to union recognition demands), and Amazon (outlawing mandatory captive audience meetings). Bold Swings • Unions will begin to abandon their reliance on the NLRB. This could mean an increase in labor grievances in union shops. Unions may also revisit recognitional picketing to pressure employers into
We were spot on with our prediction that Donald Trump would fire NLRB General Counsel Jennifer Abruzzo as one of his first acts as President. And even while Trump’s General Counsel nominee Crystal Carey has been waiting for Senate approval since March, the Acting General Counsel William Cowen has been busy undoing many of Abruzzo’s past memos and issuing his own policies. Those on the chopping block included memos on the legality of non- competition agreements and stay-or-pay provisions, and whether college athletes should be considered employees. New NLRB General Counsel Has Undone Much of the Former GC’s Efforts
recognizing them outside the election process. This would result in some reduction in RC Petition activity – leaving employers with little choice but to timely file RM petitions in response to recognition demands. • Unions will continue to step up their reliance upon the strike weapon as their preferred tool to economically pressure employers at the bargaining table. So, expect an increase in strike activity.
New Board Leaders Haven’t Chipped Away at the Biden Board’s Gains – Yet
But the NLRB hasn’t been able to overturn major Biden-era board decisions as we thought they would, because the panel only has one sitting member and currently lacks a quorum. Trump’s nominees to fill two vacant GOP seats on the panel, James Murphy and Scott Mayer, are still pending before the Senate. More on what we expect their eventual confirmation to mean next.
Steven M. Bernstein Tampa Regional Managing Partner, Co-Chair
OUR PREDICTIONS WERE MOSTLY RIGHT
Todd A. Lyon Portland, OR/Los Angeles San Francisco/Seattle Partner, Co-Chair
HOW DID WE DO?
Joshua D. Nadreau Boston/Portland, ME Regional Managing Partner, Vice Chair
BACK TO HOME
WAGE AND HOUR
PREDICTIONS FOR 2026
2025 PREDICTIONS RECAP
Look for Portal-to-Portal Act Litigation We expect to see a substantial uptick in litigation where employees undergo security, wait time, and walk time under the Portal-to-Portal Act (PTPA). While not all state wage statutes explicitly incorporate the PTPA, the last five years have seen numerous courts clarify whether it applies to state laws – or provides broader coverage. Major retailers and entities with warehouse presences have faced the most heat. We expect some states will try to clarify whether they follow the PTPA in 2026. Minimum Wage Will Continue to Rise Several states will increase their minimum wages in 2026 – well above the $15 range in some locations – particularly in the Midwest. Additionally, DC’s minimum will be more than double the federal requirement at $18.00, and California’s minimum will go up to $16.90. We project that increases will remain local and at the state level rather than from the federal government. Opinion Letter Program Will Grow The Trump administration revamped the DOL’s opinion letter program in 2025, encouraging businesses to submit their questions about how various laws apply to their specific working situations. The compliance assistance effort is likely to continue to grow throughout 2026 and companies should expect more guidance materials from the DOL in the coming year.
We correctly predicted a few major reversals by the Trump DOL: It paused legal battles over the Biden-era overtime rule – which would have raised the salary threshold for the so-called “white collar” OT exemptions to $59k. As we predicted, the threshold will remain $35k for now, and the DOL plans to tweak its OT regulations eventually. It dropped the Biden-era independent contractor standard by freezing litigation over the rule in May while it works to rewrite the standard. The wage division was due to issue a new IC proposal in September, which was likely sidelined by the government shutdown. It advanced a regulation to clarify joint employment under the Fair Labor Standards Act and plans to issue a proposal by the end of 2025 – but expect delays given the shutdown. New Administration Returned to Employer-Friendly Rules We thought business groups would file lawsuits against Biden-era rules – and we were right. Several continue to pend in courts across the country. Most activity has been paused while the Trump administration works through the regulatory process to undo the rules. The Trump administration did halt enforcement of the Biden-era independent contractor rule, one of the few regulations that wasn’t blocked in court. Business Groups Filed More Lawsuits We thought we’d see White House support for an incremental rise to the $7.25 federal minimum wage, but President Trump himself hasn’t endorsed a hike. We have seen Senators Peter Welch (D-Vt.) and Josh Hawley (R-Mo.) introduce a bill to raise the federal minimum wage to $15 per hour, while Sen. Bernie Sanders (I-Vt.) and Rep. Bobby Scott (D-Va.) offered legislation to boost the minimum wage to $17. Federal Minimum Wage Hike Hasn’t Panned Out
Increased Enforcement at State Level and Federal Enforcement Focus on Business-Friendly Initiatives States with robust wage and hour and wage payment laws (e.g. CA, IL, NJ, NY, WA), will continue to aggressively enforce their laws during a period when DOL enforcement activities may decline (in part, due to a reduction in the number of investigators). On the other hand, expect federal enforcement to continue to take a business-friendly approach. We also saw the DOL step back from issuing liquidated damages while reviving the Payroll Audit Independent Determination (PAID) program (allowing employers to self-audit and resolve certain FLSA violations) in 2025. Employers should keep in mind that resolution of wage and hour issues with DOL does not cut off employee rights under other state or local laws, so expect plaintiffs to seek their recovery at that level. AI’s Role Will Throw Wage and Hour For a Loop Artificial intelligence technology will have a substantial impact on wage and hour issues, including FLSA exemption status. If AI ends up substituting “independent judgment” under the administrative employee exemption, or the introduction of robots and AI reduces headcount so that an individual is no longer supervising two or more full-time employees, workers could lose eligibility for the executive employee OT exemption.
Kathleen McLeod Caminiti New Jersey/New York Partner, Co-Chair
J. Hagood Tighe Columbia Partner, Co-Chair
OUR PREDICTIONS WERE MOSTLY RIGHT
HOW DID WE DO?
BACK TO HOME
WORKPLACE SAFETY
PREDICTIONS FOR 2026
2025 PREDICTIONS RECAP
We’ll See a Business-Friendly Enforcement Approach New leadership will mean a new day for employers. Now that David Keeling is in place as the new head of OSHA, we predict the new administration will take more of a cooperative approach with employers compared to the prior administration. Wayne Palmer has also been confirmed to lead MSHA, where we expect similar efforts to increase outreach to industry to begin. Some specific examples: • We predict OSHA will issue few, if any, press releases after an employer is cited for safety violations. • We also expect fewer regulations to be proposed or promulgated. • Thanks to reduced staffing at OSHA (and a White House request to lawmakers to cut roughly 12% of OSHA’s employees), we’ll see fewer inspections, especially programmed inspections. However, certain types of inspections will still occur, such as fatalities, hospitalizations, and amputations. Continued Push to Cut ‘Red Tape’ We expect OSHA to move forward on the proposed deregulation efforts it announced this past year – putting parameters around the general duty clause and changes to the respiratory protection requirements. Specifically, we expect federal OSHA to issue a heat regulation, but something more performance-based and less prescriptive. We also expect some movement on workplace violence in healthcare and social services industries.
Trump’s DOGE initiative – which has since fizzled out – did reportedly lead to staff reductions at the DOL as we predicted, as well as the closure of several OSHA and MSHA field offices. However, several MSHA office leases were eventually restored, according to news outlets, and dozens of staffers were brought back after opting into DOGE’s buyout program aimed at reducing the size of the federal government earlier in the year. DOGE Made Cuts to OSHA – But Impact Was Minimal We were spot on with our prediction that new Trump leadership at OSHA would look to roll back rules issued during the previous administration. As we expected with Labor Secretary Lori Chavez-DeRemer, OSHA moved forward with the rulemaking process on its heat standard, holding a summer public hearing on the potential standard and collecting comments from the public. OSHA was also at the forefront of the Trump administration’s deregulatory push at the DOL, with the agency advancing more than 20 initiatives to put limits on certain enforcement powers, reduce regulatory requirements, and streamline standards. Trump’s OSHA Scaled Back Biden-Era Safety Rules Employers and advocacy groups have used the high court’s ruling in SEC v. Jarkesy , which narrowly limited how agencies can use administrative law judges, to attack OSHA’s use of internal ALJs. But so far, most of those challenges to take cases out (subscription required) of OSHA’s authority and have them heard before a full judge and jury have been unsuccessful (subscription required). This will continue to be an active area to watch in 2026. SCOTUS Decisions Haven’t Fully Transformed Workplace Safety and Mine Safety – Yet
State Plans Likely to Beef Up Enforcement in Response With the anticipated changes at the federal level, we expect certain state OSHA plans will head in the opposite direction with more regulations and aggressive enforcement. We also expect to see continued efforts by local prosecutors in certain jurisdictions pursing criminal investigations/prosecutions related to workplace deaths, even without federal OSHA making any referrals.
Kristin R.B. White Denver Partner, Co-Chair
OUR PREDICTIONS WERE SOMEWHAT RIGHT
HOW DID WE DO?
Todd B. Logsdon Louisville Partner, Co-Chair
BACK TO HOME
Minimum Wage Rates Continued to Climb July brought the next round of minimum wage hikes for healthcare workers, as well as local-level increases across various cities across the state, and in August California officials announced that the statewide minimum wage will increase for all employers to $16.90 in 2026. While members of California’s Fast Food Council pressed ahead at a January meeting with plans for a proposed cost-of-living increase to minimum wages in the fast-food sector, the Council, which is required to hold public meetings or hearings at least every six months, has essentially gone dark since February. State Cracked Down on Privacy and Cyber Issues From AG Bonta’s March announcement of an investigative sweep of the location data industry to the CPPA’s public outreach efforts related to opt-out preference signals, 2025 was a wake-up call for businesses subject to California privacy laws. See our Privacy and Cyber section for more.
2025 PREDICTIONS RECAP
CALIFORNIA
California Revived Its Role as the Leader of the “Trump Resistance”
Just as we predicted, California pushed back against the Trump administration, including in areas of federal control. For example, California issued joint guidance with other states in February reaffirming their position that workplace DEI initiatives remain legal and important to the modern workplace. And the NLRB is now suing the state over its new law that expands California’s power to decide unfair labor practice cases in the private sector, starting in 2026. We also correctly predicted that the state would move forward with groundbreaking initiatives regarding the use of AI in employment – though the path to get there was a winding one. While a bill (AB 1018) aimed at AI use in employment decisions failed to make it to the governor’s desk, and while Newsom vetoed the much-watched “No Robo Bosses Act” (SB 7), two state agencies got the job done. First, the Civil Rights Department adopted new employment discrimination rules for automated-decision systems (ADS), which took effect in October. Then, the CPPA approved a sweeping set of regulations that will impact both your AI and privacy policies starting next year. In addition, the Golden State enacted the nation’s first comprehensive attempt to require safety and transparency reporting for the most powerful AI systems. California Pushed for AI Safeguards and Accountability
PREDICTIONS FOR 2026
AI and Workplace Surveillance Will Remain in the Spotlight Despite some AI-related legislative fails this year (SB 7 and AB 1018), California regulators advanced some significant regulations of AI use by employers. This issue won’t go away anytime soon – California doesn’t like to be left behind other states, so the legislative and regulatory push will continue. Similarly, we have not seen the end of AB 1331 – a sweeping employee surveillance bill that failed to make it to the governor’s desk this year. Expect to see more legislative attempts in 2026 at changing the landscape when it comes to permissible workplace surveillance in California. California Will Continue to Respond to the Trump Administration While the state’s new labor law (AB 288), which attempts to regulate areas reserved for federal oversight, makes it ripe for a court to strike it down on preemption grounds, labor will continue to look for creative ways to counter perceived rollbacks at the federal level by enacting new state laws.
California Supreme Court Will End “Headless” PAGA Claims Even with the statutory clarifications that came along with last year’s PAGA reforms, California courts continue to wrestle with one of the thorniest aspects of the law: whether plaintiffs can maintain particularly troubling and costly “headless” PAGA claims against employers. The California Supreme Court is set to address the issue in Leeper v. Shipt , Inc., and we anticipate a decision in early 2026 that will end pre-form headless PAGA claims once and for all.
OUR PREDICTIONS WERE CORRECT
HOW DID WE DO?
MORE FROM 2025 Newsom Signed More Than a Dozen New Workplace Laws From the brand new “Workplace Know Your Rights Act,” which will require immigration-related rights notification and emergency contacts, to a ban on certain stay-or-pay contracts, here’s a round- up of some of the top workplace laws coming to California in 2026 and beyond.
Court Struck Down the State’s New Ban on “Captive Audience” Meetings California employers can breathe easier when requiring staff to attend meetings regarding their position on unionization efforts – so-called “captive audience” meetings – following a federal court striking down a new state ban on the practice. The September decision is the first to find that state-level restrictions on captive audience meetings are preempted by federal labor law and violate the First Amendment.
Benjamin M. Ebbink Sacramento/Washington, D.C. Partner
BACK TO HOME
PRIVACY AND CYBER
PREDICTIONS FOR 2026
2025 PREDICTIONS RECAP
Wiretapping Litigation Wave Will Keep Churning We expect the plaintiffs’ bar to continue the wave of wiretapping and related claims against businesses relating to the use of tracking technology on company websites. While this trend began primarily in California, it has already expanded to other states. We anticipate that it will continue to do so, unless or until state legislatures or courts directly address the application of wiretapping and other long-standing laws that were intended for other purposes to the use of tracking technology on websites. States Will March Forward With Their Own Privacy Rules, Adding to Patchwork We expect to see continued proliferation of privacy laws at the state level. To date, 19 states have passed consumer privacy laws. Other state lawmakers have been considering similar legislation, and we believe more
We thought we’d see a renewed push for a federal privacy law in 2025 with Republicans in control of Congress, aiming to supersede the patchwork of state laws and reduce the administrative burden of compliance (particularly for broad laws like California’s). But Congress failed to meaningfully consider any sort of comprehensive privacy law (such as the stalled American Privacy Rights Act). We Didn’t See a Skimpy Federal Privacy Law Absent federal action to update standards to address the privacy concerns that arise from artificial intelligence technology, we correctly predicted that states would continue to be on the forefront of new consumer privacy laws. For example, California adopted regulations this year that protect against AI-fueled employment discrimination. And Maryland’s Online Data Privacy Act now requires certain businesses to follow strict consumer privacy rules. Read more about other state privacy laws that took effect in 2025. State Laws Continued to Proliferate As we predicted, the ongoing trend of wiretapping and related claims filed against businesses that use third-party cookies, pixels, and other tracking technology continued in stride throughout 2025. We saw more decisions addressing the issue of the application of state wiretapping laws to the use of tracking technologies. In March, we saw a Florida federal judge’s decision that said a healthcare organization’s website tracking technologies and chatbots violated the Florida Security of Communications Act by intercepting internet communications without consent. And in September, a California federal court dismissed a proposed class action suit for failing to allege any specific, concrete harm stemming from the company’s use of standard website data collection software. Check out FP’s Digital Wiretapping Litigation Map to get a full lay of the land. Plaintiffs Continued to Get Creative
X
states will pass legislation in the next year. Don’t Bet on the Feds to Act
At the federal level, although there is bipartisan interest in passing consumer privacy legislation, we don’t expect Congress to reach agreement on the terms of a potential law in 2026. The same issues that have defeated similar legislation in the past – the scope of pre-emption and whether to include a private right of action – are likely to be impediments to passage of any new legislation, at least in the near future.
Risa B. Boerner, CIPP/US, CIPM Philadelphia Partner, Co-Chair
OUR PREDICTIONS WERE MOSTLY RIGHT
HOW DID WE DO?
Usama Kahf, CIPP/US Irvine Partner, Co-Chair
BACK TO HOME
DATA PROTECTION
PREDICTIONS FOR 2026
2025 IN REVIEW
Federal Incident Reporting Will Tighten CISA’s CIRCIA final rule is now slated to take effect in May 2026, which will lock in 72-hour incident and 24- hour ransomware-payment reporting for covered critical-infrastructure entities. New Assessment Rules Will Take Effect With NYDFS Part 500 amendments finished phasing in, 2026 will be the first full exam cycle under the stricter controls. Defense contracting will also have expanded assessment obligations when DOD’s CMMC program enters Phase 2 on November 10, 2026. AI-Powered Deepfakes Will Enter Routine Supplier and Investor Scams Short, low-resolution video clips in Teams, Zoom, and WhatsApp will be used to approve wire changes or grant admin access. Plus, voice-clone business email compromises and phone fraud will go mainstream. Expect executive, counsel, finance, and help-desk impersonation using cloned voices plus spoofed caller ID.
Cybercriminals Used New Ransomware Tactics The transportation and logistics sectors became victims of a new cybercrime threat actor in 2025. The “Coinbase Cartel” stole data and threatened public release to force payment, a major evolution in ransomware that exposes businesses to reputational and legal risk without even shutting down their systems. The transportation and logistics businesses became a major mark for these groups because they handle high-value operational and shipment data, often shared through complex supply chains of brokers, carriers, and IT vendors. Missouri Adopted New Data Breach Notice Law for Insurers Missouri enacted “The Insurance Data Security Act” in July, joining the growing state momentum behind stricter cyber security regulations for insurance firms. The law, which goes into effect January 1, 2026, sets new standards for insurers and licensed entities regarding data security, breach investigations, and notification protocols. SEC Cybersecurity Compliance Deadlines The SEC’s amended Regulation S-P required broker-dealers, investment companies, registered investment advisors, and transfer agents to enhance their data privacy protections. The update requires covered institutions to establish written policies and procedures to detect, respond to, and recover from unauthorized access to customer information. Large firms had to comply with the rule by December 3, 2025.
Daniel Pepper, CIPP/US Denver Partner, Chair
BACK TO HOME
PREDICTIONS FOR 2026
EMPLOYEE DEFECTION AND TRADE SECRETS
2025 PREDICTIONS RECAP
The FTC Isn’t Done – Healthcare Will Become Ground Zero Even with a scaled-back agenda, the FTC will target non-competes and mobility-restricting agreements in
The administration replaced key agency leadership early, and federal momentum for a nationwide non-compete ban vanished almost instantly. The NLRB GC’s aggressive theories faded, and FTC/DOJ priorities shifted elsewhere. As predicted, federal pressure eased significantly, but employers still needed to watch other fronts. Feds Retreated on Non-Compete Regulation While federal regulators stepped back, we correctly identified that blue states would surge forward. 2025 saw new and expanded limits on non-competes, stay-or-pay rules, and mobility-restricting agreements in states like California, Washington, and Colorado. Attorneys general became increasingly vocal about business-to-business no-poach agreements and “unfair competition” theories tied to mobility restrictions, exactly the pattern we expected. Blue States Picked Up the Torch We predicted more overlap between privacy laws and trade secret theft, and that’s exactly what happened. Departing employees triggered not only trade secret claims but also data- access, data-transfer, and consumer-privacy violations when they downloaded or transferred sensitive information. Plaintiffs used privacy statutes as new leverage points, and defendants had to navigate a more complex liability landscape. Trade Secrets + Data Privacy Collided
healthcare, including B2B no-hire arrangements. Expect more enforcement actions focusing on competition in the labor market even without a federal non- compete ban. Noteworthy Local Trends Will Reshape the Landscape 2026 will bring major local developments that create real compliance headaches for multi-state employers: • Florida’s CHOICE Act will produce its first mandatory injunctions, raising fights over how federal courts apply state substantive law versus federal procedure. • New York City will ban non-competes, setting up a jurisdictional clash with the state legislature. • California courts will clarify the reach of its non-compete ban and confirm that California employers can still enforce lawful restrictive covenants in other states where they’re permitted. AI Will Become a Central Player in Trade Secret Battles Trade secret litigation will increasingly revolve around AI systems. We’ll see AI notetaker transcripts, voice records, and auto-summaries become critical discovery material. Employees departing with custom AI agents or model-trained assets will give rise to new misappropriation claims. And courts will wrestle with ownership questions involving model weights, training sets, and AI-generated engineering artifacts. This means employers will need stronger controls around AI-enabled workflows, clearer IP assignments, and updated exit protocols.
Michael P. Elkon Atlanta Partner, Co-Chair
Robert Yonowitz Irvine Partner, Co-Chair
Jonathan Crook Charlotte Partner, Founder - Blue Pencil Box
OUR PREDICTIONS WERE CORRECT
HOW DID WE DO?
David J. Walton, AIGP, CIPP/US Philadelphia Partner
BACK TO HOME
PAY EQUITY AND TRANSPARENCY
PREDICTIONS FOR 2026
2025 PREDICTIONS RECAP
Expect an Avalanche of Pay Equity and Transparency Litigation We anticipate a noticeable uptick in litigation, fueled by well-publicized gender pay settlements and pro- plaintiff decisions in states with robust pay equity statutes. Moreover, now that more than a dozen states have pay transparency laws requiring job postings of pay scales and other requirements, you can expect plaintiffs’ attorneys and state enforcement authorities to keep a sharp eye out for violations – and take businesses to court. A September court decision from Washington, for example, will make it easier for plaintiffs to bring costly lawsuits against employers for violations of the state’s highly technical job posting law, inviting a spike in “serial plaintiffs” who merely apply for jobs in aid of bringing large-scale class action lawsuits. Pay Equity Litigation Will Lead to a Flurry of Audits The rise in multi-million dollar pay equity settlements – six or even seven figures – will lead more companies to go on the defensive. Plaintiffs’ firms are using increasingly sophisticated statistical models to identify vulnerabilities, and class-certification strategies are maturing fast. In response, companies will rush to conduct privileged pay-equity audits to identify gaps, justify pay differentials, and clean up risky practices before litigation lands. We’ll also see more targeted audits focused on bonus distribution, starting-pay consistency, and pay progression. Interested in getting started with your own audit? Completing a needs analysis survey will help you identify the first steps you should take to help you kick off 2026 the right way. Pay Data Reporting Will Only Grow
We expected the new Trump administration to drop federal pay equity initiatives, and we were right. The EEOC didn’t revive Component 2 pay data reporting, and no new federal pay equity mandates surfaced. Instead, the agency limited activity to standard demographic reporting through the EEO-1 Component 1 process. As we forecast, the administration’s deregulatory posture and skepticism toward expanded agency authority effectively froze federal efforts. Any momentum around compensation transparency shifted to the states. Trump Administration Didn’t Pursue Pay Equity Initiatives We correctly predicted that the action would be at the state level. 2025 saw Ohio introduce pay stub transparency, New Jersey usher in a far-reaching pay transparency law, a major expansion of Washington’s law, an expansion of Massachusetts’ law, and some additional clarity for California’s broad law, just to name a few. States Stepped Up Their Game We also expected to see a rise in local jurisdictions passing pay data reporting laws, and we were right. New York City is poised to finalize its pay data reporting bill once the city council overrides the mayor’s veto (expected in December). Columbus and Cleveland were also among the cities that jumped on the train in 2025. Pay Data Reporting Required in More Cities
Even without a federal mandate, employers should expect more state and local pay-data reporting obligations in 2026. Large jurisdictions will expand the scope of their existing reporting frameworks (expect broader categories, intersectional data, and deeper analyses of pay bands). Smaller states and major municipalities will introduce their own reporting rules, often piggybacking on California-style models. Companies operating in multiple states will be forced to centralize data- governance practices and build stronger compensation-analytics capabilities. Pay Equity and Transparency Goes Global As we noted in our International section, pay equity efforts have seen significant momentum in the EU and UK. Notably, EU Member States have until June 2026 to incorporate a directive aiming to close the gender pay gap into national laws. Momentum will spread beyond the EU and UK, with Canada, Australia, and several APAC nations expanding their own transparency or reporting mandates.
Kathleen McLeod Caminiti New Jersey/New York Partner, Co-Chair
OUR PREDICTIONS WERE CORRECT
HOW DID WE DO?
Lonnie D. Giamela Los Angeles/Irvine Partner, Co-Chair
BACK TO HOME
Page 1 Page 2-3 Page 4-5 Page 6-7 Page 8-9 Page 10-11 Page 12-13 Page 14-15 Page 16-17 Page 18-19 Page 20-21 Page 22-23 Page 24-25 Page 26-27 Page 28-29 Page 30-31 Page 32-33 Page 34-35 Page 36-37 Page 38-39 Page 40-41 Page 42-43 Page 44-45 Page 46-47 Page 48-49 Page 50-51 Page 52-53 Page 54-55 Page 56-57 Page 58-59 Page 60-61 Page 62-63 Page 64-65 Page 66-67 Page 68-69 Page 70-71 Page 72Made with FlippingBook - Online magazine maker