Compliance Roundup: The EEOC Moves to Drop Its Criminal Records Guidance, DHS Ends Automatic Work Permit Extensions, and a Court Revives a Waiting Time Claim

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Written By
Jennifer Kiesewetter
Published On: October 20, 2026

Jenny Kiesewetter is a practicing ERISA and employee benefits attorney who partners with HR teams on a wide range of workplace compliance matters — from benefit-plan obligations to day-to-day HR policies and regulatory requirements. Her guidance helps employers spot risks early, navigate regulatory change, and make informed decisions that support both employees and the organization.

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Over the past two weeks, the Equal Employment Opportunity Commission (EEOC) moved to withdraw its criminal records guidance, and the U.S. Department of Homeland Security (DHS) finalized the end of certain automatic work permit extensions. New York City’s fair chance hiring rules change October 30. The Second Circuit also revived a waiting time pay claim.

Federal News

Status: Submitted for White House review October 6, 2026; rescission remains pending.

What’s Changing: The EEOC sent the White House a draft final rule to rescind its 2012 guidance on arrest and conviction records under Title VII of the Civil Rights Act of 1964.

The EEOC’s 2012 guidance on criminal background checks makes 2 central points:

  • An arrest alone does not establish that an applicant committed a crime.
  • When reviewing convictions, employers should consider the offense’s seriousness, the time since the offense or the end of the sentence, and the nature of the job.

Rescinding the guidance does not change the statute. A plaintiff who shows that a hiring screen falls harder on a protected group can still sue under 42 U.S.C. § 2000e-2(k), and the employer must then show the screen is job-related for the position and consistent with business necessity.

What This Means for HR:

  • Tie each criminal history decision to the job duties, whatever the EEOC does.
  • Audit blanket exclusions for arrests and older convictions, since private suits and state and local laws still apply.
  • Track the Federal Register for the rescission and any replacement guidance.

Effective Date: Final rule published and effective October 14, 2026; the interim rule it adopts took effect October 30, 2025.

What’s Changing: DHS finalized its October 2025 interim rule. The final rule, at 91 Fed. Reg. 65306, adopts the interim version without changes. A worker who filed an employment authorization document (EAD) renewal on or after October 30, 2025, generally does not get the automatic extension of up to 540 days while the application is pending.

The rule does not eliminate every automatic extension. Two exceptions remain:

  • Earlier filings: Workers who filed qualifying renewal applications before October 30, 2025, keep their automatic extensions.
  • Other extensions: Extensions authorized under federal law or Federal Register notices, including those for certain Temporary Protected Status holders, continue.

The change hits some asylum applicants and other workers who rely on U.S. Citizenship and Immigration Services (USCIS) to renew their employment authorization. If their current authorization expires before USCIS approves the renewal, they generally must stop working unless another legal basis allows them to continue.

In its cost analysis, DHS estimates that 20,000 to 33,000 work permits will lapse during an 18-month window starting in May 2027, affecting roughly 1,700 to 2,800 employers.

What This Means for HR:

  • Pull every EAD expiration date from your I-9 reverification list and start renewal conversations 180 days out, when USCIS starts accepting the filing.
  • Check whether each affected worker filed the renewal before or after October 30, 2025.
  • Talk to immigration counsel before ending anyone’s employment while a renewal is pending.

Trending State News

Effective Date: Adopted September 15, 2026; published September 30, 2026; effective October 30, 2026.

What’s Changing: The New York City Commission on Human Rights adopted final amendments to its Fair Chance Act rules, which appear in Title 47 of the Rules of the City of New York. The amendments bring the rules in line with Local Law 4 of 2021. They now cover current employees as well as applicants, extend protections to pending cases, unsealed violations and adjournments in contemplation of dismissal, and give applicants and employees at least 5 business days to respond to a Fair Chance Employment Analysis while the position stays open.

An employer may withdraw a conditional offer only based on a criminal background check conducted under the city’s Human Rights Law, a medical examination permitted under the Americans with Disabilities Act, or information it could not reasonably have known before making the offer. For that third ground, the employer must show it would have withheld the offer on that information alone.

Per se violations include criminal history questions on pre-offer forms, even with a disclaimer, unless an exemption applies or another law requires the language. So is failing to run a new Fair Chance Employment Analysis before adverse action when an applicant or employee identifies an error material to the analysis.

What This Means for HR:

  • Hold positions open at least 5 business days after the applicant receives the analysis.
  • Run the Fair Chance process before acting on a current employee’s new arrest or conviction, the same as for applicants.
  • Conduct a new analysis before adverse action when an applicant or employee identifies a material criminal-history error.

Around the Courts

Decided: October 13, 2026.

What’s Changing: In Santos v. Lidl US, LLC, No. 25-2357, the U.S. Court of Appeals for the Second Circuit revived a store clerk’s claim for pay while she waited for a manager to open the store. Lidl required her to report at 4:45 a.m. for a 5:00 a.m. shift. Her complaint alleges the opening manager regularly arrived at 5:00 a.m. or later and the store was sometimes still locked, so she and her coworkers waited unpaid for about 15 minutes once a week. The U.S. District Court for the Eastern District of New York dismissed her Fair Labor Standards Act and New York Labor Law claims. The Second Circuit vacated that dismissal and sent the case back.

Writing for the majority, Judge Robinson held that waiting time is compensable when an employer requires an employee to report to the worksite at a set time, ready to work, and the employee cannot begin for reasons outside her control, citing 29 C.F.R. § 790.7(h). The court also could not conclude that 15 minutes a week is too small to count. Judge Sullivan dissented. The ruling lets the claims go forward without deciding that Lidl owes anything, and it sets Second Circuit precedent for federal courts in Connecticut, New York, and Vermont.

What This Means for HR:

  • Record and pay for required reporting time when employees are present and ready to work but cannot start because a manager has not opened the workplace.
  • Fix opening procedures so late managers do not lock staff out.
  • Audit time records for gaps between required arrival and first punch.

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