A Day in the (Work) Life

NLRB Rulings Primed for Reversal. On August 26, 2026, National Labor Relations Board (NLRB or Board) General Counsel Crystal Carey issued a memo identifying Board precedents she has asked the Board to reverse and others she plans to challenge, and although no reversals have yet occurred, the Board now appears positioned to act. The decisions most likely to be overturned are McLaren Macomb (2023), which held that offering severance agreements with broad non-disparagement and confidentiality clauses violates Section 8(a)(1), and Stericycle (2023), which makes facially neutral workplace rules presumptively unlawful if an employee could reasonably read them as coercive. The General Counsel has also targeted the following decisions: Amazon Services (2024) on captive audience meetings, Siren Retail (2024) on predictions about unionization, Tesla (2022) on dress codes, Cemex (2023) on bargaining orders and Thryv (2022) on enhanced remedies. These rulings matter to all employers, not just to employers with unionized workforces, because Section 7 of the National Labor Relations Act protects the concerted activity of all nonsupervisory employees whether or not a union is present. If McLaren Macomb is overturned, employers could revisit the scope of confidentiality and cooperation protections in separation agreements. If Stericycle is overturned, a return to the Boeing (2017) balancing framework would give employers more flexibility regarding workplace rules. It is important for employers to comply with current NLRB precedents while continuing to monitor these matters, including the Board’s pending rulings in Valley Radiology and Honeywell, to ensure that current practices keep pace with developing areas of the law at the NLRB.

Second Circuit Limits Scope of Workplace Arbitration Agreements. On September 30, 2026, the US Court of Appeals for the Second Circuit held that the Ending Forced Arbitration of Sexual Harassment and Sexual Assault Act (EFAA) shields from arbitration a plaintiff’s entire lawsuit, not just the sexual harassment claims within it. The plaintiff, a former Director of Innovation and Chief Operating Officer of a law firm and its affiliated legal technology company, alleged that her employers fixated on her appearance, told her to flirt with clients to attract business and wrongfully terminated her weeks after she sought to exercise her fully vested stock options. The employers argued that the EFAA’s reference to a “case” relating to a sexual harassment dispute meant only the individual harassment claim, so the remaining claims should proceed in arbitration. The three-judge panel rejected that argument, reasoning that “case” is most naturally read to mean an entire lawsuit, while “claim,” which Congress used elsewhere in the statute, refers to a narrower, singular demand for relief. The panel noted that the Sixth and Ninth Circuits have reached similar conclusions, and plaintiff’s counsel stated that the ruling avoids duplicative proceedings and prevents employers from using arbitration clauses to fragment claims. The decision therefore affirmed the lower court’s ruling allowing the plaintiff to litigate her entire case in court. Ultimately, the decision demonstrates that even a well-drafted and otherwise enforceable arbitration provision does not reach all claims and that once a plausible sexual harassment claim is asserted, other unrelated claims in the same lawsuit may be litigated in court as well.

Legislation Regarding AI in the Workplace. California Gov. Gavin Newsom signed several bills that set limits on how employers use artificial intelligence (AI) in the workplace. These include S.B. 947, the No Robo Bosses Act, which bars employers from relying “solely” on an automated decision system to discipline or fire an employee, and S.B. 951, which requires notice when an employer’s use of AI tools leads to jobs being displaced or automated. Newsom also signed A.B. 1883, which with some exceptions bars employers from using AI tools to collect neural data or track emotional states, and A.B. 1331, which restricts the use of AI tools in restrooms. In Connecticut, in late May, Gov. Ned Lamont signed Public Act 26-15, the Connecticut Artificial Intelligence Responsibility and Transparency Act, and key employment provisions took effect October 1. The law covers automated employment-related decision technology (AEDT) used as a “substantial factor” in employment decisions, and it states that using AEDT is not a defense to discrimination claims. Courts and regulators may still consider evidence of anti-bias testing or similar proactive efforts when deciding whether unlawful bias occurred. Employers operating in California and Connecticut can use these new laws as an opportunity to review and revise their current practices to ensure that standard operating procedures and processes comply with these developments in the law.

Random Beatles Fact: The first recording The Beatles ever released was a song titled “My Bonnie,” in which The Beatles sang backup for Tony Sheridan. It was recorded in Hamburg, Germany, in 1961 when both The Beatles and Sheridan were playing at Hamburg’s Top Ten Club. The song was actually credited to Sheridan and the Beat Brothers because the record company thought The Beatles would be too confusing to a German audience.

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If you have any questions about this Legal Briefing, please feel free to contact any of the attorneys listed or the Eversheds Sutherland attorney with whom you regularly work.