Compliance Roundup: The NLRB Confirms Its Misconduct Discipline Standard, California Restricts AI at Work, and a Second Court Blocks H-1B Payment Policies

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Written By
Jennifer Kiesewetter
Published On: October 5, 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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The NLRB confirmed its standard for disciplining misconduct during protected activity, California signed 4 workplace technology laws, and a second federal court blocked the policies behind the $100,000 H-1B payment. California’s first deadlines arrive January 1.

Federal News

Decided: September 23, 2026.

What’s Changing: The National Labor Relations Board (NLRB) remanded Lion Elastomers LLC, 375 NLRB No. 41, to an administrative law judge to decide the case under General Motors LLC and the Wright Line framework. The move follows a July 2024 decision by the U.S. Court of Appeals for the Fifth Circuit vacating the Board’s 2023 ruling, which had restored older tests that protected more heated conduct during protected activity.

The majority also concluded that General Motors remains controlling Board precedent for misconduct during protected activity. Member Prouty agreed that General Motors governs this case but dissented from that broader conclusion. The Board did not rule on whether the discipline at issue was lawful.

Under Wright Line, the General Counsel must show that the employee engaged in protected activity, the employer knew about it, and the employer had animus against it. The employer can then show that it would have taken the same action absent the protected activity.

What This Means for HR:

  • Review conduct and harassment policies and recent discipline involving employees engaged in protected concerted activity.
  • Compare proposed discipline with how you treated similar misconduct outside protected activity, and document the comparison.
  • Consult counsel when misconduct occurs alongside organizing, bargaining, grievance activity, or other protected concerted activity.

Status: Fact sheet released September 24, 2026.

What’s Changing: The Occupational Safety and Health Administration (OSHA) published a fact sheet, Opioid Overdose Rescue with Reversal Medications, that a U.S. Department of Labor release ties to the administration’s Great American Recovery Initiative. OSHA recommends keeping FDA-approved reversal medications such as naloxone or nalmefene on site, stored in a visible, accessible location near first-aid supplies and automated external defibrillators.

The fact sheet also suggests a voluntary training program that teaches workers to recognize an overdose. Signs can include slow or stopped breathing, blue lips, pinpoint pupils, and unresponsiveness. Employers can obtain reversal medications through several channels, including pharmacies, wholesale distributors, group purchasing organizations, and manufacturer programs. Because the medications wear off, OSHA stresses calling 911 immediately.

The fact sheet imposes no new compliance requirements.

What This Means for HR:

  • Consider whether reversal medication makes sense for your workplace and, if so, where to keep it.
  • Train appropriate personnel to recognize an overdose, administer the medication, position the person safely, and call 911 immediately.
  • Check state requirements, including your state’s Good Samaritan law and naloxone standing order, before adopting an overdose response protocol.

Trending State News

Effective Date: Signed September 30, 2026. Senate Bill (SB) 951, Assembly Bill (AB) 1883, and AB 1331 take effect January 1, 2027; SB 947 takes effect July 1, 2027.

What’s Changing: Governor Gavin Newsom signed 4 workplace technology bills. SB 947, known as the No Robo Bosses Act, prohibits employers from relying solely on an automated decision system to discipline or fire an employee. When an automated system serves as the primary basis for the decision, a human must corroborate it using the information collected or used to produce the system’s output, or other relevant supporting information. The employer must also provide written notice when it informs the employee of the outcome.

SB 951 adds disclosures to California Worker Adjustment and Retraining Notification (WARN) Act notices when a mass layoff, relocation, or termination is caused in whole or substantial part by artificial intelligence (AI) or other automated technology replacing or automating jobs. The notice must identify the job functions being automated. AB 1883 bars employers from using AI-powered workplace surveillance tools to recognize or predict an employee’s emotional state or to collect neural data, with an exception for safety. AB 1331 bars surveillance tools in workplace bathrooms, apart from access badges and personal alarms that capture no audio or video.

What This Means for HR:

  • Inventory automated tools used for discipline, termination, scheduling, or monitoring and determine which California requirements apply to each, starting with the surveillance limits that take effect January 1, 2027.
  • Review human oversight and employee notice procedures before SB 947 takes effect July 1, 2027.
  • Add technology-related layoffs, relocations, and terminations to your California WARN review by January 1, 2027.

Around the Courts

Decided: September 30, 2026.

What’s Changing: In a preliminary injunction ruling in Global Nurse Force v. Trump, No. 4:25-cv-08454, Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California vacated and remanded the agency policies implementing the $100,000 H-1B payment required by Proclamation 10973. The order also bars the agencies from enforcing or implementing those policies under Proclamation 10973 and its September 18, 2026, extension until they complete notice-and-comment rulemaking under the Administrative Procedure Act and the required Regulatory Flexibility Act analyses.

The order reaches only the agency policies and leaves both proclamations in place.

The ruling follows a June 8, 2026, decision in State of California v. Mullin, in which the U.S. District Court for the District of Massachusetts vacated the agencies’ policies implementing the payment. The U.S. Court of Appeals for the First Circuit declined to stay that ruling. A federal court in Washington, D.C., upheld the proclamation itself in a 2025 ruling.

Separately, the U.S. Department of Homeland Security (DHS) has proposed a $103,265 fee for H-1B cap-subject petitions, including petitions eligible for the advanced-degree exemption. As proposed, the fee would apply in addition to other applicable fees or payments. The comment period closed September 24, 2026.

What This Means for HR:

  • Confirm current payment and filing requirements with immigration counsel before submitting an affected H-1B petition.
  • Budget for the proposed DHS fee on cap-subject petitions, which would apply on top of other fees if finalized, and monitor the litigation.
  • Keep records of any $100,000 payments your organization made and discuss with immigration counsel whether the court rulings affect those payments.

Decided: September 21, 2026.

What’s Changing: In County Concrete Corp. v. International Brotherhood of Teamsters Local 863, No. 2:26-cv-00660, the U.S. District Court for the District of New Jersey denied the company’s motion to vacate and confirmed an arbitration award reinstating an employee with back pay. An operations manager and a sales representative reported smelling marijuana coming from the employee’s personal vehicle during a lunch break on company property. He tested positive, and the company fired him under its two-strike policy because of an earlier positive test in December 2023.

The arbitrator found that the company had not shown use, possession, or impairment at the workplace and that marijuana odor alone did not establish reasonable suspicion of workplace cannabis use or impairment. Applying a highly deferential standard of review, the court held that the reasonable-suspicion conclusion did not disregard New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). The court also agreed that a smell combined with a positive test “says little about when consumption occurred.” CREAMMA allows employers to consider a positive test but prohibits adverse action based solely on cannabinoid metabolites in an employee’s bodily fluid.

What This Means for HR:

  • Designate trained personnel to make reasonable-suspicion determinations and have them document observable signs of impairment promptly, since odor and a positive test did not carry this case.
  • Review New Jersey drug-testing and discipline policies against CREAMMA, and check whether any policy ties termination to a positive test alone.
  • Review applicable collective bargaining agreement requirements when drug testing leads to discipline.

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