September 2026 brought several notable employment law developments, including new DOL guidance on meal breaks, volunteer work, and tip-sharing under the FLSA, as well as an NLRB decision restoring the General Motors standard for employee misconduct during protected activity. New York enacted a new employee personnel records access law, while Illinois expanded worker protections by codifying disparate impact claims and limiting driver’s license requirements in job postings. Employers should review policies, recordkeeping practices, and hiring criteria to prepare for these changes.
US Department of Labor Issues Three New Opinion Letters Interpreting the FLSA
On September 9, 2026, the US Department of Labor issued three opinion letters responding to employer questions on the application of the Fair Labor Standards Act (FLSA):
- FLSA 2026-11: A 60-minute lunch break, during which employees spend six to 14 minutes walking to and from their designated break area, still constitutes a bona fide meal period. Required travel to and from a break area doesn’t automatically make an unpaid meal period compensable; employers must ensure employees are relieved of all duties for the duration of the meal period and have at least 30 minutes to eat.
- FLSA 2026-12: An employee may volunteer, outside of their normal work hours, to perform services for their nonprofit employer when the employee offers the services freely and without pressure or coercion; has no expectation of compensation for the volunteer services; and performs services that are not the same as, or similar to, the work the employee is employed to perform.
- FLSA 2026-13: A restaurant supervisor who also works as a bartender may keep tips left by bar customers to whom he solely and directly provided services. If, however, the employee’s tips and other bartenders’ tips are consolidated and split among all bartenders working that shift, and therefore it is not possible to attribute the tip solely to the supervisor, the supervisor is not permitted to take any portion of those tips.
While these letters are not binding law, they provide helpful guidance to employers and serve as persuasive authority to courts interpreting the FLSA. Further, under the Portal-to-Portal Act, 29 U.S.C. § 259, an employer who acts in good faith reliance on an opinion letter may be shielded from FLSA liability.
The NLRB Reverses Course on Employee Outbursts
On September 23, 2026, the National Labor Relations Board (NLRB) issued a long-awaited ruling in Lion Elastomers LLC, 375 NLRB No. 41 (2026), which rejected a previously issued standard for determining when employee outbursts during the course of protected concerted activity lose the protections of Section 7 of the National Labor Relations Act. As a result of the Board’s ruling, the NLRB has returned to its prior standard established in General Motors, 369 NLRB No. 127 (2020).
The Board’s ruling comes on the heels of a Fifth Circuit ruling, which rejected the Board’s prior determination in Lion Elastomers II, 372 NLRB No. 83 (2023) that the General Motors standard had been overruled. In light of the Fifth Circuit’s ruling, the Board reasoned that its rejection of the standard established in Lion Elastomers II was not a choice but rather a recognition that the Fifth Circuit ruled “the Board acted beyond the scope of its authority by attempting to overrule General Motors.” As a result, General Motors remains controlling Board “precedent for deciding whether an employee has lost the Act’s protections for abusive conduct that arose in the course of Section 7 protected activity.”
In light of the Board’s decision, the NLRB has reverted to the burden-shifting standard set forth in General Motors and its predecessor, Wright Line, 251 NLRB 1083 (1980), for determining whether employees have been lawfully disciplined for making abusive or offensive statements, including the use of profanity, harassing statements, or other unacceptable remarks, while engaged in protected concerted activity.
Under the reestablished standard set forth in General Motors, “the Board will properly find an unfair labor practice for an employer’s discipline following abusive conduct committed in the course of Section 7 activity when the General Counsel shows that the Section 7 activity was a motivating factor in the discipline, and the employer fails to show that it would have issued the same discipline even in the absence of the related Section 7 activity.”
The Board’s ruling represents the first decision under the Trump Administration to unwind existing Board precedent established under the Board during the Biden Administration. It is expected that in the months to come the Board will continue to reshape NLRB policy.
Employers should continue to monitor Board activity and contact their NGE attorney for the latest NLRB developments.
New York Enacts Employee Personnel Records Access Law (Section 210-b of the New York Labor Law)
On September 9, 2026, New York Governor Kathy Hochul signed into law a new Section 210-b to the New York Labor Law, granting employees a statutory right to inspect and obtain copies of their personnel records. The law, which applies to all public and private employers in New York State and covers both current and former employees, takes effect on November 8, 2026. The law contains the following provisions:
Access to Personnel Records
- Employees may submit a written request to their employer to inspect or obtain a copy of their personnel record.
- Upon request, employers must make the personnel record available within five business days.
- Employees have the right to review their personnel record up to two times per calendar year.
- Employers must retain employee personnel records for at least three years following an employee’s termination.
Definition of Personnel Records
- The statute defines “personnel record” broadly as any record “kept by an employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation or disciplinary action.”
- The law specifically states that the following must be included:
- Name, address, and date of birth
- Job title and description
- Rate of pay and other compensation
- First date of employment
- Job application and resume
- Performance evaluations
- Lists of probationary periods
- Waivers signed by the employee
- Copies of dated termination notices
- Other documents relating to disciplinary actions
Notification of Negative Information Added to Personnel Record
- If an employer places negative information in an employee’s personnel record, the employer must notify that employee within 10 days.
- Negative information subject to the notification requirement is any information that has been or may be used to negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation, or creates a possibility that the employee will be subject to disciplinary action.
- The notification and review caused by placing negative information in an employee’s personnel record does not count towards one of the two annually permitted reviews of the employee’s personnel record.
Right to Dispute
- If an employee disagrees with any information in their personnel record, the employee and employer can agree to remove or correct that information.
- If an agreement is not reached, the employee may submit a written statement explaining their position about the information at issue. The employer must add that statement to the employee’s personnel record.
Next Steps for New York Employers
- Review their personnel record-keeping practices.
- Develop a standardized intake and response process for handling personnel records and responding to written employee requests to review the same.
- Train HR staff on the new requirements to ensure compliance.
Disparate Impact Liability Codified in Illinois
The Civil Rights Safeguard Act (SB 3777), which takes effect on January 1, 2027, amends the Illinois Human Rights Act (IHRA) to codify a disparate impact cause of action. Starting in January, it will be a civil rights violation for any employer, employment agency, or labor organization to use “criteria or methods” in hiring, promotion, discipline, termination, or other related acts that have the effect of (regardless of intent) subjecting individuals to discrimination on the basis of any IHRA-protected classification, citizenship status, family responsibilities, work authorization status arrest record, or conviction record.
The Act provides for a burden-shifting framework. Such acts are unlawful under the Act unless the employer demonstrates the criteria or methods are (1) job-related for the position and (2) consistent with business necessity. However, an employee may still prevail on a disparate impact claim by showing the business necessity could be served by an alternative practice with less discriminatory effect.
This amendment appears to be a direct response to federal policy under the current administration that has largely eliminated disparate impact enforcement at the federal level. The Illinois Department of Human Rights (IDHR), the state Human Rights Commission, and Illinois courts will continue reviewing facially neutral policies for discriminatory effects without requiring evidence of intent.
In light of this development, employers may want to consider taking the following steps:
- Review selection criteria, promotion standards, discipline matrices, and termination policies for potential disparate impact.
- For each criterion that could produce disparate outcomes, develop a strong, documented justification showing job-relatedness and business necessity.
- Assess whether a less discriminatory alternative exists.
Restrictions on Driver’s License Requirements in Job Postings
The Illinois legislature has amended the Illinois Job Opportunities for Qualified Applicants Act, which Governor JB Pritzker recently signed. Starting January 1, 2027, employers with 15 or more employees are prohibited from requiring a valid driver’s license on job applications or postings, unless driving is an essential job function and possessing a valid driver’s license is a business necessity.
Job postings that genuinely require a valid license must include a brief description explaining why the license is required.
If you have any questions about navigating the latest developments in the labor and employment landscape, please contact Kristin Michaels or your Neal Gerber Eisenberg attorney.
The content above is based on information current at the time of its publication and may not reflect the most recent developments or guidance. Neal, Gerber & Eisenberg LLP provides this content for general informational purposes only. It does not constitute legal advice, and does not create an attorney-client relationship. You should seek advice from professional advisers with respect to your particular circumstances.
This alert is a monthly labor and employment legal update from Neal Gerber & Eisenberg’s Labor & Employment team. Our practice group partners with employers of all sizes to help anticipate, manage, and develop practical solutions to labor and employment issues at both the national and local levels.
