Top Employment Challenges for Employers in 2026
Employers face an increasingly complex employment law landscape as things evolve at both the state and federal levels. In this environment, determining where to place attention and resources can be a difficult task. In hopes of aiding in that task, following is a summary of the top employment challenges for employers in 2026.
- Empowered Employees: Increase in Retaliation and Whistleblowing Claims
Read More. - A New Landscape for Immigration: Heightened Enforcement Requires Proactive Compliance
Read More. - The Maze of State Laws: Navigating Compliance with Competing Requirements
Read More. - EEOC's New Focus: Religious Accommodations and Discrimination Against White Men
Read More. - The NLRB is Back, but Change May be Slow to Come
Read More. - Rethinking ADA Accommodations: Well-being and Mental Health Challenges
Read More.
Empowered Employees: Increase in Retaliation and Whistleblowing Claims
By Kyle Malone & Luke VanFleteren
Retaliation and whistleblower claims have been on the rise over the last several years and that trend is likely to continue into 2026. In 2024 (the most recent year for which statistics are available), charges alleging retaliation made up almost half of the over 88,000 charges filed with the Equal Employment Opportunity Commission (EEOC). As discussed below, the EEOC Chair is actively seeking new EEOC charges from certain employees through social media. With any increase in overall charge activity, employers will likely see a corresponding rise in retaliation claims.
The Occupational Safety and Health Administration (OSHA) is also getting renewed attention for its role in whistleblower programs. OSHA enforces more than 20 whistleblower statutes, many of which are narrowly tailored to certain industries including railroads, pipelines, energy, transportation, and aviation. For example, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), prohibits discrimination or retaliation against U.S. airline or aircraft manufacturer employees who report information related to air carrier safety. In the last two years, multiple advocacy groups have publicly called for reforms to specifically strengthen enforcement of the AIR21 statute, which is indicative of a trend in all industries where employees are empowered now more than ever to speak up and assert claims and challenge decisions, even those not typically thought of as adverse employment actions.
Employers in all industries need to be prepared for this increased enforcement activity by conducting thorough and well-documented investigations and ensuring consistent application of policies.
For more information on retaliation and whistleblower trends and strategies for employers, please contact Kyle Malone, Luke VanFleteren or the Stinson LLP contact with whom you regularly work.
A New Landscape for Immigration: Heightened Enforcement Requires Proactive Compliance
By Liz Chatham & Alisa Ehrlich
As 2026 begins, employers with foreign national employees face an immigration environment marked by accelerated enforcement and lightning speed policy shifts. Following extensive 2025 actions that reshaped legal immigration, coordinated agency scrutiny continues to intensify. To stay ahead, organizations should pair rigorous compliance with proactive workforce planning, clear employee communications, and tight coordination among HR, legal, and recruiting teams. Employers should be prepared for increased and stricter enforcement of Form I-9 requirements by the Department of Homeland Security (DHS) and should focus on training and self-audits to strengthen compliance. Businesses can also expect an increased focus on immigration due diligence in corporate transactions, making proactive compliance efforts essential.
Key Developments to Watch
- Change to H-1B Lottery and weighted selection in FY27. DHS will maintain the beneficiary-centric model and introduce a wage based weighting tied to DOL OEWS levels (Level 1 entry; Level 2 some experience; Level 3 competent; and Level 4 fully competent/ experienced). Under the weighted selection process, H-1B registrations indicating wage Level 4 will be entered into the selection pool four times, those assigned wage Level 3 will be entered into the selection pool three times, those assigned wage Level 2 will be entered into the selection pool two times, and those assigned wage Level 1 will be entered into the selection pool one time. Employers must identify location, SOC, and wage level at registration, and should expect selection odds to favor Level 4 and Level 3 wages, with implications for compensation strategy, role design, and multi-employer filings where the lowest wage level controls.
- New $100,000 fee for certain H-1B filings. A September 2025 presidential proclamation requires an additional $100,000 payment for new H-1B petitions filed for beneficiaries outside the United States or requesting consular or port-of-entry processing. The fee does not apply to extensions, amendments, or change-of-status filings, and is currently set to expire Sept 20, 2026 with the potential for an extension A mechanism for a national interest fee exemption exists, but availability is limited.
- H-1B site visits and FDNS audits. Expect more unannounced on-site inspections to determine and test whether petition representations match on-the-ground duties, locations, and supervision. Employers should refresh audit-readiness protocols, maintain contemporaneous documentation, and train front-line teams on receiving site inspectors. Employers should be prepared to receive USCIS/FDNS site inspectors by designating an on-site point of contact, verifying government credentials, notifying counsel promptly, escorting the inspector at all times, providing only requested records and access, and documenting the visit.
- EAD/Work permit renewals are no longer eligible for automatic extensions and are issued with a shorter validity. Automatic extensions for many EAD categories filed on or after October 30, 2025, have ended, and most five-year EADs have reverted to approximately 18 months. One notable exception: F‑1 students who timely file for a 24‑month STEM OPT extension receive an automatic extension of employment authorization, up to 180 day, while the extension application is pending. Since renewals are generally limited to filing within 180 days of expiration, reverification cycles will tighten, and authorization gaps may occur; Employers should implement robust calendaring, employee reminders, and contingency staffing plans.
- Intensified security vetting and country-based measures. Agencies are applying intensified security vetting across USCIS adjudications (field offices and service centers), U.S. consular interviews, and CBP inspections at ports of entry. Expect expanded social media screening, more frequent and broader biometrics collection and reverification (fingerprints, facial/voice recognition, and repeat biometrics at renewal), device and document searches at the border and targeted secondary inspections, additional security questionnaires, continuous vetting/watchlist checks, and interagency security clearances. Thirty-nine different countries have either a full or partial ban based on non-immigrant and immigrant visa issuance. As a result, anticipate longer processing times, more Requests for Evidence or administrative processing, and intermittent disruptions; build longer lead times into hiring and mobility planning.
For more information on evolving U.S. immigration enforcement and compliance requirements for foreign national employees, please contact Liz Chatham, Alisa Ehrlich or the Stinson LLP contact with whom you regularly work.
The Maze of State Laws: Navigating Compliance with Competing Requirements
By Sharon Beck, Amy Conway & Laura Reyes
In the continued absence of comprehensive federal action on many workplace issues, certain states and local jurisdictions have stepped in with legislation trending toward expanded employee protections and enhanced disclosure obligations. The result is a growing patchwork of compliance obligations that require careful monitoring, strategic planning, and regular policy updates to navigate compliance and competing requirements given the maze of state laws particularly for employers who operate across multiple states.
Multistate employers should be especially attentive to developments in paid leave, pay transparency, pay data reporting, and the regulation of artificial intelligence (AI) in employment decisions. For example:
- Paid Leave. By mid-2026, nearly a third of all states will enforce some form of mandatory paid family and medical leave programs funded through payroll contributions. Most recently, Delaware, Maryland, Maine, and Minnesota implemented paid family and medical leave, with benefits scheduled to begin in 2026. Many states, including Colorado, Connecticut, Illinois, and Washington, are expanding protections for workers in existing paid family and medical leave programs this year.
- Pay Transparency and Pay Data Reporting. Pay transparency continues to expand beyond job postings into wage statements, internal recordkeeping, and government reporting. California, for example, revised the definition of "pay scale" under its Pay Transparency Law and extended the statute of limitations for filing suit, as well as the look-back period for calculating damages. The state also increased employers' reporting obligations under the California Pay Data Reporting requirements by expanding the job categories for pay-data reporting and requiring employers to store demographic data separately from personnel records.
- Artificial Intelligence (AI) in Employment Decisions. Several states have enacted or are implementing AI-specific employment laws, while others have adopted broader responsible AI frameworks. Colorado, Illinois, and Texas have implemented guardrails around the use of AI in employment decisions by requiring notice when AI is used in certain employment-related decisions. At the same time, recent federal executive action signaling potential preemption of certain state AI laws has introduced uncertainty about how these requirements will ultimately coexist.
For more information on evolving state and local workplace laws and AI-related employment requirements, please contact Sharon Beck, Amy Conway, Laura Reyes or the Stinson LLP contact with whom you regularly work.
EEOC's New Focus: Religious Accommodations and Discrimination Against White Men
By Joel Spann & Leena Fry
Recent developments at the Equal Employment Opportunity Commission (EEOC) have signaled a shift in their enforcement efforts regarding religious accommodations and workplace Diversity, Equity and Inclusion (DEI) policies.
Following the Supreme Court's decision in Groff v. DeJoy, which requires that employers show a substantial burden on their business to support the rejection of a requested accommodation, the EEOC issued two decisions applying a stricter analysis to religious accommodations cases. In one decision, the EEOC rejected the use of previously acceptable outside evidence (including general scientific knowledge and public health recommendations) to demonstrate undue hardship. In the other, the EEOC focused on the disadvantage to the employee in determining the reasonableness of an accommodation, diverting from the well-established principle that the accommodation offered need not be the preferred or most effective, so long as it resolves the conflict. Immediately after the decisions were issued, the EEOC published a press release (200 Days of EEOC Action to Protect Religious Freedom at Work | U.S. Equal Employment Opportunity Commission) discussing their recent enforcement actions supporting religious freedom, with EEOC Chair Andrea Lucas announcing: "the EEOC is restoring evenhanded enforcement of Title VII—ensuring that workers are not forced to choose between their paycheck and their faith." These actions make it clear that the EEOC expects employers to expend every effort to accommodate employees' religious beliefs.
Similarly, the EEOC recently published two pieces of guidance associating workplace DEI policies with potential Title VII violations (What You Should Know About DEI-Related Discrimination at Work | U.S. Equal Employment Opportunity Commission and What To Do If You Experience Discrimination Related to DEI at Work | U.S. Equal Employment Opportunity Commission) and advising employees how to pursue a charge with the EEOC if they feel they were subjected to discrimination or harassment pursuant to a DEI policy. Later, Lucas took the unprecedented step of soliciting charges from the public, posting on X: "Are you a white male who has experienced discrimination at work based on your race or sex? You may have a claim to recover money under federal civil rights laws." Lucas's statement suggests a dramatic shift in EEOC enforcement away from prioritizing those who belong to groups traditionally perceived as disadvantaged.
Given the evolving landscape of EEOC enforcement priorities, employers should review their policies pertaining to both religious accommodations and DEI. Employers should ensure that any denial of a requested religious accommodation is well-documented and supported with substantial evidence of undue hardship. Employers should also review their DEI policies to ensure compliance with Title VII and evaluate whether they are making employment decisions based upon protected characteristics. Finally, employers should foster a working environment that is welcoming and inclusive, and where employees are comfortable reporting any discriminatory or harassing behavior.
For more information on recent EEOC actions regarding religious accommodations and DEI practices, please contact Joel Spann, Leena Fry or the Stinson LLP contact with whom you regularly work.
The NLRB is Back, but Change May be Slow to Come
By Grant Mulkey & Amanda Laufer
On January 7, 2026, Republicans James Murphy and Scott Mayer were sworn in as Members of the National Labor Relations Board, joining Democrat David Prouty. For the first time in nearly a year, the Board has a stable quorum. The Board can now begin issuing decisions in the hundreds of cases on its backlogged docket. However, the Board has traditionally overturned its precedent only if three members vote in favor of the change, and Members Murphy and Mayer indicated they would follow that tradition during their Senate confirmation hearings. Given the partisan divide on the Board and the fact that the Trump Administration has not made any nominations to the Board's two remaining vacancies, Biden-era pro-labor decisions may remain in place for some time. Although Members Murphy and Mayer may be inclined to replace those decisions with more employer-friendly ones, Member Prouty likely will not be. Employers should expect those decisions to remain in place until the Board gains a fourth Member at some point in the future.
Also on January 7, 2026, Crystal S. Carey was sworn in as the NLRB's General Counsel. In that role, Carey will oversee the NLRB’s regional offices, which have continued to investigate unfair labor practice charges and issue complaints, prosecute unfair labor practice cases against employers before administrative law judges, and conduct union representation elections despite the absence of a Board majority. Carey is expected to issue a memo in the near future setting forth her priorities for her four-year term, which likely will make clear which Biden-era decisions she seeks to have overturned and replaced with more pro-employer standards.
For more information on recent NLRB appointments and their potential impact on labor law decisions, please contact Grant Mulkey, Amanda Laufer or the Stinson LLP contact with whom you regularly work.
Rethinking ADA Accommodations: Well-being and Mental Health Challenges
By Luke VanFleteren & Stephanie Scheck
As we move into 2026, employers should be aware that mental health and associated accommodations continue to emerge as scrutinized areas under the Americans with Disabilities Act (ADA). Historically, disability accommodations under the ADA focused primarily on physical impairments. However, courts are increasingly recognizing mental health conditions – including anxiety disorders, autism spectrum disorders, depression, and PTSD – as disabilities protected by the ADA. This recognition means employers should be prepared to evaluate and respond to accommodation requests related to these conditions.
This trend has led to an evolving understanding of what constitutes a "reasonable accommodation" under the ADA. Employers are seeing an increasing number of requests for workplace accommodations such as flexible scheduling, modified supervision strategies, reduced sensory stimuli, and work-from-home arrangements. These requests must be evaluated and responded to appropriately, as they may qualify as reasonable accommodations depending on the requesting employee's role and the workplace context.
To account for these changes, employers should review their policies and procedures regarding workplace accommodations. Similarly, employers should take steps to make sure that managers are trained and equipped to recognize when discussions with an employee may trigger obligations under the ADA, and to respond to requests for medical accommodations, including requests which may not traditionally have been considered requests for reasonable accommodation under the ADA.
For more information on emerging ADA obligations and mental health accommodations, please contact Luke VanFleteren, Stephanie Scheck or the Stinson LLP contact with whom you regularly work.
Preparing for 2026
Taken together, these developments underscore a broader reality: employment law compliance is increasingly complex, fast-moving, and enforcement-oriented. Employers that rely on one-size-fits-all practices and policies may find themselves exposed to unnecessary risk. Proactive planning is critical to navigating competing requirements, minimizing disruption, and achieving success in the year ahead.
