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For more than 160 years, the False Claims Act (FCA) has been the federal government’s primary tool to combat fraud. In 2025, the U.S. Department of Justice (DOJ) underscored just how powerful — and profitable — the FCA can be, announcing a record-shattering $6.8 billion in government recoveries driven largely by health care fraud cases. Now, the Trump administration is using the FCA as a tool to eliminate what it considers to be illegal diversity, equity, and inclusion (DEI) programs. The question companies should be asking moving into 2026 is whether failure to comply with the Trump administration’s interpretation of civil rights laws presents a new level of risk. Indeed, a new frontier of potential liability under the FCA — with its treble damages and potentially astronomical statutory penalties — may become the future of enforcement.

Introduction

California enacted several new employment laws in 2025, including enhanced penalties for wage and hour violations, expanded pay data reporting requirements, broadened sexual harassment protections, stronger pay equity and transparency measures, measures addressing tip theft, restriction of employee loan repayment, expanded time off and use of sick pay benefits…

Three nearly simultaneous actions of the Federal Trade Commission (FTC) confirmed its intentions with respect to employee noncompetes. In the first two related actions, the FTC indicated it will not defend its 2024 rule banning virtually all worker noncompetes and will instead focus on efforts to rein in the use of “unfair and anticompetitive” noncompetes. The FTC’s third action notified the public of its intent to accomplish its goals, at least in part, through a wide-ranging request for the public to identify employers using noncompetes, followed by targeted enforcement actions.

A recent Supreme Court decision clarified that discrimination claims brought by members of majority groups in so-called “reverse discrimination” cases cannot be subject to a heightened evidentiary burden. In Ames v. Ohio Department of Youth Services, the Court ruled that a Sixth Circuit requirement that members of a “majority group” (such as heterosexual employees) must satisfy a heightened evidentiary standard for discrimination claims was incompatible with the language of Title VII and with Supreme Court precedent. The unanimous decision written by Judge Ketanji Brown Jackson resolves a circuit split, as the Sixth, Seventh, Eighth, Tenth, and D.C. circuit courts of appeals had previously imposed a higher evidentiary burden on discrimination claims brought by majority group members.

Last Friday, a Texas federal court struck down the U.S. Department of Labor’s (DOL) 2024 rule raising the minimum salary levels for certain exemptions to the overtime requirements of the Federal Labor Standards Act (FLSA). The decision by Judge Sean Jordan of the U.S. District Court for the Eastern District of Texas to vacate the 2024 rule applies nationwide to all employers and comes weeks before another increase to the salary levels was set to take effect.

Recently, in Johnson v. NCAA, the U.S. Court of Appeals for the Third Circuit held that, depending upon the surrounding circumstances, student-athletes may qualify as employees under the Fair Labor Standards Act (FLSA). This is the latest in a series of court and agency decisions involving student-athletes seeking employee status at their colleges and universities. As we reported in February, the National Labor Relations Board (NLRB) recently ruled that the student-athletes on the Dartmouth College men’s basketball team are “employees” under the National Labor Relations Act (NLRA) and, therefore, were eligible to vote on whether to unionize (see Trustees of Dartmouth College, Case No. 01-RC-325633). This decision, which was issued by Regional Director for Region 1 Laura Sacks, is currently on appeal to the full NLRB. These decisions are likely to encourage additional litigation by student-athletes across the U.S.

Q. May employees use abusive language when raising grievances about working conditions?

A. In many circumstances, the answer is (again) yes. On May 1, the National Labor Relations Board (NLRB or Board) overruled its July 2020 decision that changed the standard for cases involving “abusive employee conduct” during labor disputes and negotiations, reverting back to a test that it used in some form or another for approximately 70 years. In its decision, the NLRB found that an employee did not lose National Labor Relations Act (NLRA) Section 7 protections when he used strong language and acted less than civil when raising grievances about working conditions.

Published in Law360 on January 20, 2023. © Copyright 2023, Portfolio Media, Inc., publisher of Law360. Reprinted here with permission.

Earlier this month, President Joe Biden signed into law the Protecting American Intellectual Property Act,[1] which aims to protect U.S. intellectual property by imposing sanctions on companies and individuals involved in trade secrets theft.

Q: Does federal antitrust law bar independent contractors from engaging in a group boycott to increase wages and alter conditions of employment?

A: No. The First Circuit Court of Appeals recently held that an individual’s independent contractor status does not bar application of the labor-dispute exemption to antitrust law, which exempts collusion among potential competitors for the purpose of increasing wages or improving conditions of employment.

Q: Now that DOL-OSHA announced its COVID-19 vaccine ETS for private-sector workers, what does my company need to do to adhere to the guidelines?

A: On November 4, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard (ETS), containing the anticipated COVID-19 vaccination rule covering private companies with 100 or more employees. The ETS became effective immediately on November 5 upon its publication in the Federal Register. On November 6, the Fifth Circuit Federal Court of Appeals granted an emergency motion to stay enforcement of the ETS effectively nationwide, pending further action by the court, which could come as early as November 9 at 6 p.m. ET. Other challenges to the ETS’s enforcement have been filed in the Eighth, Sixth, and Eleventh circuits thus far.