The Year Ahead 2026: Agencies Are Off And Running

As 2026 unfolds, the focus shifts to the practical priorities of federal agencies that are being shaped by newly established quorums.

Takeaway

"Everyone — employer, employee, union — benefits from one law affecting everything. One set of labor law is the best for everyone involved. When you get into this piecemeal application and understanding of the law, you're left with a system that is fragmented and ineffective."

Agencies

• National Labor Relations Board
• Department of Labor
• Equal Employment Opportunity Commission
• Department of Homeland Security

National Labor Relations Board

Quorum Return Sets Up High Expectations

With the five-person NLRB regaining a quorum in early Jan. 2026 for the first time in nearly 12 months, the NLRB can now address its growing case backlog. NLRB decisions likely will lean toward being more employer friendly. Here's a closer look at what to expect.

Board Actions to Expect

Note: A long-held NLRB tradition has been to only change precedent with at least three votes in the affirmative.

With Two Majority Members

• Unfair labor practices sufficient to order employer to recognize a labor organization
• Work rule and handbook savings clauses
• Consequential damages
• Special circumstances sufficient to limit union paraphernalia
• Narrower interpretation of protected concerted activity

With Rulemaking or Third Majority Member

• Forced recognition through cards
• Test to determine lawfulness of work rules and handbook policies
• Independent contractor test
• Quickie election final rule
• Blocking charge policy
• Mandatory captive audience meetings
• Standard to determine bargaining unit composition

A Closer Look: Board Actions Requiring Rulemaking or Third Majority Member

Ordering Union Recognition

The Biden Board decision that made it easier for unions to circumvent the Board's election procedures is not likely to survive the courts of appeals.

That decision also provided that if an employer commits an unfair labor practice (ULP) that would require the election to be set aside, the Board will dismiss the petition without an election and order the employer to recognize and bargain with the union. That approach to bargaining orders is also likely to be overturned in the courts before the Board has a chance to address it.

Even if the decision is not overturned in the courts, the Board will likely overturn the decision. The Board could act quickly to narrow the types of ULPs that would justify such a bargaining order.

Work Rules + Handbook Policies

In 2026, employers can expect that the Board likely will overturn Stericycle and return to a more consistent, employer-friendly standard.

Stericycle overturned the Boeing decisions, which classified company rules into three categories:

1. Rules that are lawful to maintain under the NLRA;
2. Rules that warrant individualized scrutiny; and
3. Rules that are unlawful and the adverse impact on NLRA rights is not outweighed by justifications associated with the rules.

The Boeing decisions, however, were not a model of clarity, and the Board may simply return to asking how reasonable employees "would" construe a rule at issue, versus "could." The Board could also address the use of savings clauses.

Independent Contractor Test

The Trump Board will likely return to the SuperShuttle test for determining whether an individual is an independent contractor. This would be a shift from the current The Atlanta Opera Inc. standard that makes it easier to establish employee status.

The SuperShuttle test focuses on the extent to which the arrangement between the ostensible employer and the alleged employee provided the individual an "entrepreneurial opportunity."

This issue will likely ultimately be resolved in the courts.

Mandatory "Captive Audience" Meetings

The Trump Board will likely return to long-standing precedent that permitted employers to hold mandatory captive audience meetings during union election campaigns. Such meetings are useful for employers in messaging employees and were permitted under the Act as long as employees were not threatened, interrogated, punished or promised benefits.

Some states have already enacted laws restricting captive audience meetings (e.g., NY, CT, OR, IL, NJ); the courts will likely determine ongoing legal challenges.

"Quickie Election" Final Rule

The Biden Board issued a final rule returning to its "quickie election" rules: Tight timelines on hearing dates and elections, promoting election speed over clarity of legal issues.

The Trump Board will likely issue a notice of proposed rulemaking to return to the 2019 rules, which emphasized pre-election clarity. The 2019 rules provided more time for the Board to receive papers, hold a formal hearing, review briefs, issue a thorough decision and conduct an on-site secret ballot election.

Election Procedures Final Rule

The Trump Board will also likely issue a final rule similar to its 2020 rule on union election procedures: The rule would modify the Board's blocking charge policy, directing that elections be held as scheduled, regardless of pending ULP charges, and ensuring employees have a chance to be heard and not have their vote delayed.

The rule also will likely reestablish the Trump-era voluntary recognition policy, which limited the period employees and competing unions could file an election petition challenging recognition to a 45-day period after recognition.

Department of Labor

Compliance Assistance, Regulatory Rollback + More

Focus on Compliance Assistance

DOL re-launched its voluntary Payroll Audit Independent Determination (PAID) program.

• It also announced it will no longer seek liquidated damages when trying to settle wage violations through administrative proceedings.
• It also resurrected its opinion letter program.

Regulatory Rollback

DOL has stayed litigation defending these rules issued by prior administrations and has declined to enforce them, where still on the books:

• 2024 minimum salary rule.
• 2024 independent contractor rule.
• Rule implementing executive order increasing minimum wage for federal contractors.
• 2023 Davis-Bacon Act rule changes.
• Phase-out of 14(c) subminimum wages for workers with disabilities (proposed rule withdrawn).

New Rulemaking

DOL has proposed a rule to remove the following sub-regulatory guidance from its Code of Federal Regulations:

• Part 776, general coverage under the FLSA (and construction industry in particular).
• Part 779, application of FLSA to retail and service establishments (including 7(i) exemption for certain commissioned employees).
• Part 782, Motor Carrier Act exemption.
• Part 789, "hot goods" provision for child labor enforcement.

It has also proposed a rule on the FLSA "companionship services" exemption.

On the Agenda

DOL Independent Contractor Proposed Rule

• The DOL rule would address independent contractor status under the FLSA.
• The proposed rule likely will return to the independent contractor factors adopted by rulemaking late in the first Trump Administration. This test focused on two "core" factors as having the greatest weight:
  1. The nature and degree of control over the worker's work; and
  2. The worker's opportunity for profit or loss based on initiative and/or investment.

DOL Joint Employer Proposed Rule

• The rule will guide DOL enforcement of joint employer liability under the FLSA.
• DOL likely will return to the 2020 joint employer rule adopted in the first Trump Administration:
  • Actual, not mere theoretical, exercise of control is required to establish a joint employment relationship.
  • The existence of a franchisor relationship is a "neutral" factor, among other "neutral" business models, practices and contract provisions.
  • Economic dependence is irrelevant.
• For now, case law controls, and the breadth of "joint employment" varies by circuit.

White-Collar Exemption Rule

• 2024 DOL rule raised the minimum salary floor for application of executive, administrative, and professional exemption, in two stages, from $35,568 to $58,656 per year.
• Texas federal court invalidated this 2024 rule; DOL appealed but the case is held in abeyance.
• DOL indicated it will take further regulatory action on the regulation "defining executive, administrative, professional [EAP], outside sales, and computer professional exemptions."
• DOL may adopt a more modest increase to minimum salary requirement for EAP exemption.
• Still to be determined is whether DOL will modify EAP duties tests and other "white-collar" exemptions.

Dual Jobs Rule

• The "dual jobs" rule, first issued in 1967, applies to employers that take the tip credit against the minimum wage.
• The 2021 final rule codified "80/20" guidance interpreting dual jobs rule and imposed further restrictions on work that does not directly produce tips.
• The Fifth Circuit invalidated the 2021 final rule, but the 1967 rule and sub-regulatory 80/20 guidance are still intact.
• DOL has indicated it will issue a proposed rule rescinding the underlying dual jobs rule in its entirety.

Project Firewall

DOL launched Project Firewall in September 2025, an H-1B enforcement initiative designed to "safeguard the rights, wages, and job opportunities of highly skilled workers" through federal agency partnerships. Signaling the current administration's tougher, more restrictive stance on high-skilled immigration, Project Firewall increases employers' risks and penalties for their H-1B practices.

• DOL secretary may personally certify investigations based on reasonable cause without a prior complaint.
• DOL targets include alleged failure to recruit U.S. workers in good faith, wage underpayment, misrepresentation of job duties or worksites, and displacement of American workers.
• Consequences for noncompliance may include back wages, civil penalties, temporary debarment from H-1B programs and public access file enforcement.
• Employers should anticipate intensified scrutiny of H-1B practices, including wage compliance, recruitment documentation and program integrity.

Equal Employment Opportunity Commission

Unlawful DEI, Religious Bias + More

The EEOC regained a quorum on Oct. 7, 2025, with the Senate confirmation of Brittany Panuccio, giving Republicans a majority on the Commission. Upon quorum restoration, EEOC Chair Andrea Lucas, first appointed in 2020 during President Trump's first administration, commented: "Now the agency is empowered to deliver fully on our promise to advance the most significant civil rights agenda in a generation under President Trump, on behalf of the American worker."

EEOC's Objectives + Priorities

National Origin Discrimination Against Americans

On Nov. 9, 2025, the EEOC released Discrimination Against American Workers Is Against the Law guidance which, as the title suggests, focused on anti-American discrimination and instructs employers that:

• Examples of unlawful practices include job ads that prefer workers of a specific nationality or visa status, disparate treatment in hiring/firing, and harassment based on national origin.
• Common business reasons like customer preferences, lower labor cost or perceived productivity differences do not justify discrimination against American workers.

Disparate Impact Claims

President Trump signed an executive order in April instructing agencies to deprioritize disparate impact claims. As a result, the EEOC is not likely to pursue disparate impact claims against employers. An internal EEOC memo (Oct. 2025) reportedly directed the agency to discharge all disparate impact discrimination claims. That said, employers may still face disparate impact claims brought by plaintiffs in various forums.

DOJ + DEI: Increased Enforcement

• The attorney general directed the DOJ's Civil Rights Division to "investigate, eliminate, and penalize" illegal DEI programs in the private sector and in educational institutions.
• On Jan. 8, 2026, Vice President JD Vance announced the creation of a new position at the White House to conduct fraud investigations. The position is detailed in a Fact Sheet.
  • The new role will be an assistant attorney general. It remains to be seen how the new role will interface with the Civil Rights Fraud Initiative, created in May 2025 to utilize the False Claims Act to "to investigate and, as appropriate, pursue claims against any recipient of federal funds that knowingly violates federal civil rights laws."
• In 2025, the DOJ issued a number of civil investigative demands to employers seeking information on their DEI programs. We anticipate seeing additional, similar activity from the DOJ, the new position, and other agencies, such as the FCC, in carrying out their charges.

EEO-1 Reporting

• Uncertainty remains concerning how the agency will manage the future of the annual EEO-1 Report, a collection of employee race, ethnicity and sex data reported by job category.
• For years, the EEOC and the Office of Federal Contract Compliance Programs used the report to identify potential workplace discrimination trends.

Religious Accommodations

The EEOC published "200 Days of EEOC Action to Protect Religious Freedom at Work" in August 2025, acknowledging the agency's work "to defend the religious liberty of American workers."

• Employers should expect to see a continued emphasis on religious accommodation from the EEOC and employees:
  • On July 28, 2025, the Office of Personnel Management issued guidance related to federal workers' rights to practice their religious faith in the workplace.
  • cEmployers should be alert for accommodation requests that may appear to conflict with other legal obligations, including Title VII protections and state law obligations.

Gender Identity

• In Executive Order 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, President Trump directed the EEOC to rescind guidance — including the harassment guidance issued in April 2024 — inconsistent with the terms of the order.
  • In May 2025, a Texas federal district court vacated portions of that harassment guidance.
• On Jan. 22, 2026, the EEOC voted to rescind its harassment guidance.
• Employers should anticipate additional state legislation advancing and retracting gender identity-related protections and consider all applicable laws, regulations and guidance when considering gender identity-related policies, practices and issues.

Pregnant Workers Fairness Act

Employers can expect changes to the EEOC's Final Rule implementing the Pregnant Workers Fairness Act (PWFA).

• On Jan. 14, 2026, the 5th Cir. announced it will reconsider whether the PWFA was constitutionally enacted.
• Although Chair Lucas supports the PWFA, she issued a public statement on Apr. 3, 2024, while still a Commission member, that she believes the final regulations go too far.
  • According to the statement, the rule's interpretation is overly broad and conflates accommodations related to pregnancy and childbirth with accommodations related to female biology and reproduction in general.
  • Lucas specifically disagreed with the inclusion of abortion within the scope of "related medical conditions."
  • According to Lucas, menstruation, infertility, menopause and the like are not caused or exacerbated by a particular pregnancy or childbirth — but rather the functioning, or ill-functioning, of the female worker's underlying reproductive system — and so are not qualify for accommodation under the PWFA.
• A Louisiana federal district court vacated a portion of the EEOC's final rule interpreting the PWFA as requiring employers to accommodate what the court refers to as "elective abortions" and ordering the EEOC to revise the PWFA Final rule.
• Watch for states and local governments to respond with their own new laws.

Other Accommodation Issues to Watch

Issues to watch in 2026, beyond religious accommodations, include the following:

• Remote work
• PWFA
• Reassignment
• Hearing and visual impairments
• Mental health
• Medical marijuana
• AI systems

Department of Homeland Security

Broader Enforcement, Disrupted Workplaces

USCIS' Expanded Role in Immigration Worksite Enforcement

Fraud Detection and National Security Directorate (FDNS) site visits are increasing in frequency and impact.

Additionally, unannounced visits tied to employment-based visa petitions are serving as gateways to enforcement. Here are three key takeaways for employers in 2026:

• Site visit findings are increasingly referred to ICE and DOJ.
• There is greater scrutiny of job duties, worksite locations and remote work arrangements.
• Inconsistencies between petitions and actual practices are more likely to trigger subsequent action.

ICE: Broader Enforcement, Disrupted Workplaces

Worksite investigations will continue to be a core interior enforcement tool of the current administration in 2026, with raids to deter noncompliance and uncover broader violations.

Raids are often preceded by indicators such as prior I-9 audits, FDNS referrals, tips or data-driven discrepancies across filings. Employers should:

• Expect little or no advance notice and limited opportunity for informal resolution once agents arrive.
• Maintain written response protocols, designate trained points of contact and ensure staff know how to respond to warrants and requests. Preparation is critical.
• Focus on advance planning and training to help reduce disruption, avoid obstruction allegations and protect employer rights during enforcement actions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.