New Federal Government Initiatives Affect Legal Enforcement

While making changes in employment laws has not been a priority for the Trump Administration in 2026, that does not mean that there is nothing new to watch.  First, ICE announced last month that certain clerical errors in completing I-9 forms which formerly could be corrected in the future now constitute substantive violations which could result in substantial fines. Second, OSHA announced last week an increased enforcement of workplace heat hazards, starting immediately.  Finally, affirmative action requirements for veterans and the disabled remains fully in place due to the underlying statutes, but the Trump Administration has again proposed moving enforcement from OFCCP (which would be defunded) to the Office of Civil Rights. 

Last month, ICE issued enforcement guidance for employers explaining how ICE conducts I-9 form inspections and the ramifications for employers with sloppy records and/or failure to correct technical and other failures.    It is happily well written.  It confirms that employers have 3 days to produce I-9 forms requested by ICE.  “An employer may receive a monetary fine for all substantive violations and uncorrected technical or procedural failures.”  Following an inspection, the employer will receive one of three types of notices which reflect the outcome of the audit.   It also includes a list of “substantive paperwork violations,” (i.e., missing or incomplete fields) which now include the failure to fully complete certain areas of the I-9 form, such as the employee’s date of birth, the date the employee signed the form, incomplete information about the translator (if any), date of hire, date of employer certification, etc.  It also lists examples of technical failures and a description of how fines are calculated.

Last week, OSHA updated its National Emphasis Program for indoor and outdoor heat hazard prevention which provides additional guidance to avoid citations and expands the list of targeted industries.  This will be particularly important during heat waves.    Among other things, OSHA will conduct random inspections of targeted industries during heat waves to ensure compliance.  This initiative began in 2022.  The OSHA new release explained “OSHA identified industries with high rates of heat-related illness and industries with employers that have received heat-related citations or hazard alert letters.” The target lists includes farming, various manufacturers, sawmills, metal production and processing foundries, grocery and related product merchant wholesalers, department stores, air transportation, general freight trucking, couriers, messengers, and delivery services, warehouses, landscapers, community food and housing, automotive repair and maintenance, construction, greenhouses and nurseries, and restaurants.

Trump’s proposed budget again intends to defund OFCCP entirely, which will require amendments to the underlying statutes for Section 503 and VEVRAA, as well as the applicable regulations, which assign enforcement to OFCCP.  This was also proposed in last year’s budget, but was not adopted by Congress.   Employers should remember that although Executive Order 11246 (women and minorities) was rescinded in January 2025, the affirmative action obligations for the disabled and veterans remain fully in place.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Appeals Court Affirms Employer’s Summary Judgment on Sex, Race, Harassment and FMLA Retaliation Claims

Last month, the Franklin County Appeals Court affirmed an employer’s summary judgment on FMLA retaliation and sex and race discrimination allegations following the plaintiff’s demotion. Fields-Arnold v. Cent. State Univ. Bd. of Trustees, 2026-Ohio-826. The Court found that the plaintiff waived certain arguments about direct evidence, race discrimination and hostile work environment by failing to provide any substantive argument before the trial or appeals courts.  The plaintiff also failed to show replacement outside the protected class or to show that the employer’s explanation for her demotion was pretextual, dooming her sex discrimination and FMLA retaliation claims.  While she was not given a specific reason at the time of her demotion, she admitted that her job performance had previously been criticized and she failed to dispute the reasons given in the employer’s summary judgment motion.

According to the Court’s opinion, the plaintiff was encouraged by the university president to apply for a certain promotion, which she eventually received.  However, in their first post-promotion meeting, their relationship soured when she requested a higher salary than offered.  Although she prevailed in receiving a $5K increase, the president allegedly said that she talked too much and reminded him of his wife.   He later criticized her performance in a few meetings and she was demoted back to her prior position a few months later.  In the meantime, she had applied for and, after submitting additional documentation, FMLA leave. She was replaced by a white female and resigned the following year after filing this lawsuit.   The court of claims granted summary judgment on all claims to the employer.

The Court found that she had abandoned her race discrimination claim by failing to make any substantive arguments in her appellate brief when challenging the trial court’s rejection of this claim for failing to show pretext.  Indeed, she apparently only used the word “race” three times in her entire brief.

Similarly, it rejected any claims of direct evidence of sex discrimination because she never raised this argument in opposing the summary judgment brief at the trial court level.  Moreover, the three alleged comments were not directly related to the issue of her demotion, and thus, were not direct evidence since it still required an inference as to the speaker’s intent. 

[His] comments, while disrespectful and perhaps based on stereotypes, do not satisfy the requirements to constitute direct evidence of discrimination. “ ‘Direct evidence is proof which speaks directly to the issue, requiring no support by other evidence.’ ”  . . .  It “ ‘does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group.’ ”

In addition, she failed to identify anyone outside her protected age or sex class who was similarly situated, failed to meet the employer’s performance expectations and was treated better than her. 

The Court also rejected her appeal dismissing her hostile work environment when the trial court found that three alleged comments over a four month period were insufficiently pervasive or hostile.   As with her direct evidence argument, she failed to even mention “hostile work environment” when opposing the employer’s summary judgment motion at the trial court. 

As for her FMLA retaliation claim, the trial court had found that it failed because she received all of the FMLA leave she requested and her demotion did not deter her from seeking additional FMLA leave.  The Court’s majority reversed that determination, but found she still could not prevail because she failed to present evidence showing that the university’s dissatisfaction with her performance was pretext for retaliation. She admitted that the university president had criticized her performance to her face several times and did not try to show that those and other criticisms lacked a factual basis or were insufficient to motivate her demotion, etc.   Therefore, the fact that she was not told at the time of her demotion the specific performance reasons for it, she had previously been informed about dissatisfaction with her performance and failed to show those and other criticisms were pretextual.

Even if an employer approves an employee’s FMLA requests, the employer could still go on to impose an adverse employment action against the employee for exercising her rights under the FMLA. . . .  And that is exactly what [plaintiff] alleged in her complaint—that she was demoted because she took FMLA leave. We find the court of claims erred in concluding [she] “failed to identify an adverse employment action that was taken against her because she used FMLA leave.”

. . . .

Although [Plaintiff] did not receive specific examples of her unsatisfactory performance at or around the time of the demotion  . . . , she was aware of Dr. Thomas’s dissatisfaction before the demotion occurred. In her deposition, [she]recounted two meetings where [he] criticized her performance. . . .

While [her] deposition testimony reflects her general belief that she satisfied the job duties as listed in the job description  . . . , she did not contest the specific assertions [he] made about her purportedly unsatisfactory work. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Appeals Court Entertains New Questions About Shortening OCRA Limitations Period By Contract

Last month, the Cuyahoga County Court of Appeals reversed an employer’s summary judgment dismissing the former employee’s OCRA sex discrimination and retaliation complaint as untimely under the shortened limitations period in her employment agreement.  Toth v. Rocket Mtge., L.L.C., 2026-Ohio-926.    The Court found that the trial court had failed to assess whether Michigan or Ohio law applied and whether the most recent amendments to Chapter 4112 would affect the enforceability of the shortened limitations period if Ohio law applied.

According to the Court’s opinion, the plaintiff alleged that she had always worked from home in Cuyahoga County and had been terminated in September 2021 on account of her sexual orientation and prior complaints.  She filed a Charge of Discrimination with the OCRC in May 2023 and her lawsuit in February 2024.   The employer moved to dismiss and converted it to a summary judgment motion on the grounds that her offer letter required her to report and visit its Detroit headquarters and employment agreement contained a Michigan choice of law and venue provision and contained a provision limiting her to bringing claims within one year.   The trial court agreed that the complaint was untimely and dismissed it. She appealed.  While agreeing that such shortened limitations periods have traditionally been enforced, when reasonable, the Court of Appeals reversed and remanded it to the trial court to make choice of law and venue findings.

The relevant employment agreement provided that claims must be filed within one year in the county where the employee was employed:

Limitation Period and Venue. You must assert any claim against the Company or its current or former employees, officers, owners, or agents, within 1 year after your claim arises or within the applicable statutory limitations period provided by law, whichever occurs first. Your failure to do so shall act as a bar to any claim that you may have. Claims must be asserted in the state court located in, or the federal court that has jurisdiction over, the county in which you are or were employed by the Company.

The Agreement also provided that the Agreement would be interpreted under Michigan law.

Assuming that the trial court believed the limitations period was enforceable whether Ohio or Michigan law applied, it dismissed the claims as untimely without conducting a choice of law analysis.   The appeals court found this to be premature and engaged in an extensive discussion about choice of law principles.   While the agreement required it to be interpreted in accordance with Michigan law,  this provision “does not evidence an intent to subject tort claims or other types of claims between the parties to Michigan law.”   Employment discrimination claims are more like tort claims.  This means that Michigan law may not be applicable since its choice of law provision only applied to contract interpretation and not statutory or tort claims.

In this case, the trial court failed to conduct a choice-of-law analysis to determine whether [the plaintiff’s] statutory employment-discrimination claims were properly brought under R.C. 4112.052 or instead governed by Michigan’s analogous employment-discrimination statute. The trial court’s failure to perform this analysis is significant. Without this threshold determination, the trial court could not definitively say whether the one-year contractual-limitations period contained in [her] Employment Agreement was enforceable.

Materially different considerations apply to the enforceability question depending on which state’s substantive law governs [her] claims. If Ohio law governs [her] employment-discrimination claims, the trial court will have to consider how recent amendments to R.C. Ch. 4112 — known as the Employment Law Uniformity Act (“ELUA”) — affect the enforceability of the statute-of-limitations clause, if at all. Prior to the ELUA, this court upheld contractual provisions shortening the limitations period for employment-discrimination claims brought under R.C. Ch. 4112.  . . . . However, the ELUA materially altered the statutory scheme. Among its most consequential changes, the ELUA (1) imposed an administrative-exhaustion requirement, mandating that claimants first file a charge of discrimination with the OCRC and exhaust administrative remedies before initiating a civil action for damages, see R.C. 4112.052(B)(1)(a), and (2) established a two-year statute of limitations for employment-discrimination claims, which tolls during the pendency of the OCRC process, see R.C. 4112.052(C)(1). Ohio courts have not yet assessed the impact, if any, of these changes on the enforceability of contractual limitations periods. But see Logan v. MGM Grand Detroit Casino, 939 F.3d 824, 828-829 (6th Cir. 2019) (holding that the contractual provision setting a six-month limitations period was unenforceable as applied to the plaintiff’s federal-discrimination claims brought pursuant to Title VII which, like the ELUA, imposes a mandatory administrative process and includes a limitations period directly in the statute). (bolding added for emphasis).

On the other hand, if Michigan law governs [her] employment discrimination claims, as the Michigan Supreme Court recently explained, contractual provisions in employment agreements that impose reduced limitations periods are enforceable only if they are reasonable.  . . .  Under Michigan law, the reasonableness of a contractually shortened limitations period is assessed by considering three factors: (1) whether the reduced limitations period in the contract affords the claimant a sufficient opportunity to investigate and file an action; (2) whether the time limitation is so short as to effect a practical abrogation of the right of action; and (3) whether the action would be barred before the loss or damage can be ascertained. . . .

The appeals court rejected the plaintiff’s argument regarding venue and the trial court had never ruled on it. “We do, however, note that on remand if it is determined that venue is not proper in Cuyahoga County but is proper in Michigan, then the Michigan court has authority to make the choice-of-law determination, using that law that applies to that forum.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Sends Stern Warning About AI Hallucinations in Briefs

 From time to time, a client will mention that she is using AI to answer her employment law questions.   Supposedly, AI will replace lawyers at some point in the future.  That may be, but we are not there yet.   Last week, the federal Sixth Circuit Court of Appeals lowered the boom on two law firms that relied on AI to help write their appellate briefs without double checking their accuracy.  They also did not help their cause by challenging the Court's authority to question the validity of their legal skills after it discovered citations to non-existent cases, fabricated quotes from court decisions, fabricated citations to the record, etc.   The Court gave them the chance to explain themselves and to provide copies of the court decisions they cited and/or quoted and they apparently refused.  Accordingly, the Court ordered them to pay their opponents' legal fees for the entire appeal, double their opponents court costs and $15,000 each.   Whiting v. City of Athens, Tenn., No. 24-5918/5919 (6th Cir. 2026). 

AI has a record of hallucinating facts, quote and laws.  Failing to double-check your AI in litigation is remarkably stupid because you can be sure that your opponent will call you out even if the Court's law clerks do not.   In real life, clients that rely on AI do not have an opponent to correct their mistakes until they have been sued for their mistake.   Short cuts may make sense in the short term, but you can be sure that it will cost you in the long run.   In other words, pennywise and pound foolish.     

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects FLSA Complaint Which Failed to Describe Substantial Duties Performed During Uncompensated Lunch Breaks

Last week, a unanimous Sixth Circuit affirmed the dismissal of a FLSA overtime compensation collective action complaint involving automatic unpaid lunch breaks and the denial of an informal request to again amend the complaint.   Westerling v. East Tennessee Children’s Hospital Ass’n, No. 25-5744 (6^th Cir. March 10, 2026).   The Court concluded that the plaintiff’s amended complaint failed to allege that he performed any substantial or compensable duties for his employer during his lunch breaks simply by monitoring his radio.   The Complaint did not, for instance, allege that he was frequently interrupted by substantial duties, which could have been compensable.  The Complaint also failed to describe how other employees performed substantial or compensable work during their uncompensated lunch breaks.  The Court also affirmed the denial of request to amend the complaint again because the plaintiff had failed to make a formal motion or attach a proposed complaint which might have cured its existing deficiencies. 

According to the Court’s decision, the named plaintiff security guard alleged that he was not completely relieved of duties during his lunch break because he had to monitor his radio for emergency calls or events.  However, the hospital employer automatically deducted 30 minutes for a lunch break every day.  Accordingly, he alleged that he was owed unpaid overtime.  Nonetheless, the district court found that he had failed to allege a plausible FLSA claim and dismissed the complaint.  It also denied his belated request to amend his complaint (for a second time) to allege that he had been regularly interrupted during this lunch break because he failed to attach a proposed amended complaint to a motion to amend which would have plausibly cured the current defective pleading.  The Court of Appeals affirmed. 

The Court observed that employers are not required to pay employees for lunch breaks unless

the time is “spent predominantly for the employer’s benefit.” . . . “But as long as the employee can pursue his or her mealtime adequately and comfortably, is not engaged in the performance of any substantial duties, and does not spend time predominantly for the employer’s benefit, the employee is relieved of duty and is not entitled to compensation under the FLSA.”

The complaint fails to plausibly state a FLSA overtime claim. In the complaint, [the plaintiff] alleges that, during meal breaks, he was required to monitor his radio and “respond if some event arose.”   . . . But “monitoring a radio [during a meal break], and being available to respond if called, . . . is not a substantial job duty.”  . . .  It is thus not compensable. If [his] lunch breaks were frequently interrupted because he was responding to calls, that could be compensable.  . . . . But the complaint does not tell us that [he] was frequently interrupted. Instead, it just makes the conclusory assertion that [he] “was not completely relieved of his duties during his daily meal breaks” and that “he did not receive bona fide meal break periods.”  . . .  The complaint must include more to cross the line from possibility to plausibility.  . . . . [He] needed to describe the work he did rather than assert the conclusion that he performed work.  . . .  He did not do so. As a result, the complaint fails to plead sufficient facts showing that his meal periods were compensable time under the FLSA.

The Court also rejected the argument that the general collective allegations that other employees performed work during their unpaid lunch breaks could cure his failure to allege that he performed substantial work during his unpaid lunch breaks. “But the complaint says as little about the work done by other Children’s Hospital employees during meal breaks as it does about [his] work. So even if we could attribute allegations surrounding their work to [him], there would be little, if anything, to supplement.”

Finally, the Court found that the district court did not abuse its discretion in denying an informal request to again amend the complaint to cure the factual deficiencies when the plaintiff failed to make a formal motion or attached a proposed complaint which would have cured the deficiencies.  “A district court does not abuse its discretion when denying leave to amend where the plaintiff “neither moved formally to amend nor proffered a proposed amended complaint.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.