A Day in the (Work) Life

DOL Provides Guidance on Uncompensated Breaks. On September 7, 2026, the US Department of Labor’s (DOL) Wage and Hour Division (the Division) issued Opinion Letter FLSA2026-11, addressing whether an uncompensated 60-minute meal break remains a bona fide meal period under the Fair Labor Standards Act (FLSA) when employees must spend six to 14 minutes walking to and from a designated break area. The Division concluded that the meal period is not compensable because employees are fully relieved from duty during the break and retain approximately 46 to 54 minutes in the break area—well in excess of the 30-minute threshold ordinarily considered sufficient under 29 C.F.R. § 785.19. In reaching its conclusion, the Division distinguished Naylor v. Securiguard, Inc., 801 F.3d 501 (5th Cir. 2015), where employer-mandated travel consumed up to 12 minutes of a 30-minute break and potentially left too little time for a meal, noting that the substantially longer break here eliminates those concerns. The Division also reaffirmed that it applies the “predominant benefit” test (rather than a “complete relief from duty” standard) when evaluating meal period compensability, and that a few minutes of employer-required travel to a break room does not by itself render the break compensable. Notably, the opinion expressly declined to address whether the meal break arrangement satisfies the terms of the applicable collective bargaining agreement, reminding employers that FLSA compliance does not relieve them of separate contractual obligations under a CBA and applicable labor law.

Eighth Circuit Holds Employer Has Right to Jury Trial in Connection with DOL Agency Ruling. In BNSF Railway Co. v. Secretary of the US Department of Labor, Nos. 25-2436 & 25-2578 (8th Cir. Sept. 3, 2026), the Eighth Circuit vacated a DOL order that found the employer unlawfully retaliated against an employee for reporting a hazardous safety condition under the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109. After the employee’s termination, an Administrative Law Judge ordered reinstatement, back pay, compensatory damages, and punitive damages, and the Administrative Review Board (ARB) affirmed. The Eighth Circuit held that the administrative adjudication of the employee’s retaliation claim violated the employer’s Seventh Amendment right to a jury trial, reasoning that the claim was analogous to common-law wrongful discharge and tort actions and that the remedies were legal rather than equitable in nature. The court rejected the DOL’s argument that the “public rights” exception applied, finding that the employee’s claim was a private-party dispute sounding in common law, not a specialized regulatory enforcement action, and thus fell squarely within the Supreme Court’s reasoning in SEC v. Jarkesy, 603 U.S. 109 (2024). This is a split from the Second Circuit’s take on the issue. The court further noted that the FRSA itself contemplates jury trials by allowing employees to bring actions in federal district court if the Secretary has not issued a final decision within 210 days, undermining any argument that the statutory scheme is incompatible with jury trial rights. The panel granted the employer’s petition for review, vacated the ARB’s order, and remanded for proceedings consistent with its opinion. This ruling could have significant implications for FRSA whistleblower claims and the administrative adjudication of similar private retaliation disputes.

New York Employees’ Rights with Respect to Personnel Files. On September 9, 2026, New York Governor Kathy Hochul signed S3460 into law, creating a new right for both private and public sector employees and former employees to access and dispute their personnel records under N.Y. Labor Law § 210-b. The law imposes four key obligations on employers: (1) notifying employees within 10 days when negative information is placed in their personnel record; (2) providing a free copy of the personnel record within five business days of a written request; (3) allowing at least two personnel record reviews per calendar year, with reviews triggered by newly added negative information not counting toward that cap; and (4) retaining complete personnel records throughout employment and for three years after termination. The law takes effect on November 8, 2026, and employers operating in New York should begin reviewing their recordkeeping and notification practices to ensure compliance ahead of the effective date.

DC Circuit Clarifies Business Necessity Standard in Title VII Cases. In Davis v. District of Columbia, the DC Circuit affirmed summary judgment for the District of Columbia in a race-based disparate impact class action brought by former employees of the district’s Child and Family Services Agency (the Agency) who were laid off during a 2010 reduction in force prompted by a $12.1 million budget cut. The court held that Title VII’s “business necessity” defense requires only that the challenged employment practice “reasonably fit” with the employer’s legitimate interests, not that the practice be essential or required by business necessity. Applying that standard, the court found that both challenged practices (the elimination of 70 support positions and creation of a new hybrid role, and the termination of 45 additional employees across multiple offices) were consistent with the Agency’s legitimate interests in complying with mandated budget cuts while maintaining public services. The court grounded its analysis in the statutory text of 42 U.S.C. § 2000e-2(k)(1)(A)(i) and the Supreme Court precedents Congress codified in the Civil Rights Act of 1991, which broadly define “business necessity” to encompass legitimate employer interests such as safety, efficiency, and job performance. The court further held that the plaintiffs failed to identify a sufficiently specific alternative employment practice that would similarly serve the Agency’s interests with less disparate impact, noting that the Agency had already given preference to terminated employees in hiring for the new role and ultimately rehired 18 former employees. This decision is significant for employers facing disparate impact challenges to reductions in force, as it confirms that the business necessity standard demands only a reasonable fit between an employment practice and the employer’s legitimate objectives.

Anti-American Bias in the Spotlight. The Equal Employment Opportunity Commission (EEOC) has elevated anti-American discrimination as a top enforcement priority, with Chair Andrea Lucas actively encouraging workers to report instances where employers give preference to foreign workers over American employees in violation of Title VII’s prohibition on national origin discrimination. Examples of conduct the EEOC has identified as potentially violating Title VII include replacing American workers with guest workers, conducting work discussions exclusively in a foreign language, and harassing employees for speaking English. This enforcement focus represents a significant shift from the EEOC’s historical approach to national origin discrimination cases, which for decades primarily centered on English-only workplace policies and protections for non-English-speaking workers. The EEOC’s theory stretches into legal territory traditionally overseen by the US Department of Justice’s immigrant and employee rights section, as Title VII by its terms prohibits discrimination based on national origin rather than citizenship status. The EEOC’s shift is important for employers, particularly those in industries that rely on visa sponsorship programs and guest workers.

Random Beatles Fact: The inspiration behind the song “Hey Jude” came to Paul McCartney when he was driving to visit John Lennon’s son Julian. At the time, John and his wife, Cynthia, were going through a divorce. Paul, during his drive, was thinking of words to comfort Julian (whom he called “Jules”) during a stressful time. It was originally titled “Hey Jules,” but Paul switched it to “Hey Jude.” Paul played the song for John, who thought the song was about him. During recording of the song, The Beatles employed a 36-piece orchestra to provide backing music. The Beatles then asked if the members of the orchestra would clap their hands and provide the backing vocals for the “Na-na-na-na” refrain at the end. One musician reportedly refused to do so, stating, “I’m not going to clap my hands and sing Paul McCartney’s bloody song!”