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Policy Week in Review – February 13, 2026
At a Glance
The Policy Week in Review, prepared by Littler’s Workplace Policy Institute (WPI), sets forth WPI’s updates on federal, state, and local matters.
What’s Happening in Washington, D.C.
Department of Homeland Security Set to Shut Down Tonight
Given Congress’ inability to reach a funding agreement, the Department of Homeland Security is set to shut down tonight when the current short-term continuing resolution expires after midnight. The Senate attempted to advance a full year funding measure yesterday, however, the vote (52-47) failed, as it was short of the 60 votes needed to pass. Negotiations have stalled due to lack of consensus regarding reforms to U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). Apart from those agencies, the shutdown will impact a wider variety of the Department’s agencies including Transportation Security Administration (TSA), Federal Emergency Management Agency (FEMA), Federal Law Enforcement Training Centers, the Coast Guard, and others. Both the House and Senate are in recess next week.
Industry Groups Petition NLRB for Independent Contractor Rulemaking
On February 11, several industry groups, representing the interests of millions of employers nationwide, submitted a Rulemaking Petition to the National Labor Relations Board. The petition urged the Board to adopt a proposed rule for determining independent contractor status under the National Labor Relations Act. The petition argued that such a rule would restore the certainty and clarity provided by application of the common-law test as set forth in the Board’s decision in SuperShuttle. It also stated that the rule would better align with judicial precedent and the current administration’s views.
Democratic Leaders Introduce Paid Sick Leave Legislation
Senator Bernie Sanders (I-VT), Ranking Member of the Senate Health, Education, Labor and Pensions Committee and Rosa DeLauro (D-CT), Ranking Member of the House Appropriations Committee, introduced legislation titled, “The Healthy Families Act,” which would guarantee paid sick leave to every American worker. The legislation is endorsed by the AFL-CIO, Service Employees International Union (SEIU), United Auto Workers (UAW), Communications Workers of America (CWA), Transport Workers Union (TWU), Association of Flight Attendants-CWA (AFA-CWA), International Association of Machinists (IAM), United Food and Commercial Workers (UFCW), American Federation of State, County, and Municipal Employees (AFSCME), National Education Association (NEA), American Federation of Teachers (AFT), Air Line Pilots Association (ALPA), and National Partnership for Women & Families.
OFCCP Poised to Produce Contractors’ EEO-1 Data Following Losses in Litigation
Starting in 2018, the Center for Investigative Reporting (CIR) and a CIR reporter have been fighting to force OFCCP to disclose EEO-1 reports that have been filed by federal contractors. These contractors have operated with the understanding that the government must keep such reports confidential. In July 2025, the Ninth Circuit held that the EEO-1 data must be made public. Pursuant to agreements between OFCCP and CIR, OFCCP is now getting ready to produce contractors’ consolidated EEO-1 reports from 2016 through 2020. Absent a further challenge, the disclosures are scheduled to be made on February 25, 2026. For Littler’s analysis, read here.
Around the States
Ohio’s E-Verify Law for Nonresidential Construction Contractors Takes Effect Soon
Starting March 19, 2026, Ohio’s E-Verify Workforce Integrity Act will require any “nonresidential” construction company contracting in the state of Ohio to use E-Verify and impose penalties for violations. The main provision of the Act requires any “nonresidential construction contractor, subcontractor, or labor broker to verify the employment eligibility of each employee hired to perform work on a nonresidential construction project through the E-Verify program.”
California High Court Limits Use of Formatting and “Fine Print” Arguments to Defeat Arbitration
The California Supreme Court (the “Court”) has confirmed that an arbitration agreement’s formatting—standing alone—does not render its terms substantively unconscionable, even where the text is difficult to read. The Court rejected efforts to “double count” formatting flaws as both procedural and substantive defects. The Court also reiterated that extreme procedural deficiencies may warrant closer review of an agreement’s terms and remanded the case in question for further proceedings based on issues unique to the record before it.
Fourth Circuit Allows Implementation of DEI Executive Orders to Proceed
On February 6, 2026, The U.S. Court of Appeals for the Fourth Circuit issued a final published opinion vacating the district court’s preliminary injunction against several elements of Executive Order 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing and Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, which imposed certain requirements on federal contractors and grantees of federal funds regarding DEI.
Untangling the Varying Requirements of State and Local Fair Workweek Laws
Many localities across the United States, including Los Angeles County, Los Angeles, Berkeley, San Francisco, and Emeryville, California; New York City, New York; Philadelphia, Pennsylvania; Chicago and Evanston, Illinois; Seattle, Washington; and the state of Oregon, have enacted a category of wage and hour rules commonly referred to as “fair workweek” or “predictable scheduling” legislation. These laws are designed to provide predictable schedules to employees across myriad industries, but most commonly the retail and hospitality industries, in order to allow these employees to plan their budgets and coordinate multiple jobs and caregiving responsibilities.
The New Jersey Supreme Court ruled on January 29, 2026, that Title IX—the federal law that prohibits sex discrimination in all publicly-funded educational institutions—preempted the grievance procedure in a labor contract between Rutgers University and AFSCME Local 888. Consequently, the court overturned a lower court order that had required Rutgers to arbitrate the grievance of a union employee fired based upon a Title IX complaint against him. The court also determined that the university and union could renegotiate their grievance procedure to comply with Title IX, but did not require them to do so.
