Can employees be fired for organizing political protests? Can employees be fired for organizing a protest at work that violates workplace rules if the protest is not actually about work? According to a recently released Advice Memorandum from the National Labor Relations Board (NLRB), the answer may be yes. The NLRB’s Division of Advice concluded that Microsoft lawfully discharged two employees who organized a protest concerning the war in Gaza at the company’s Redmond, Washington headquarters, because the protest’s connection to workplace concerns was too tenuous to warrant protection under the National Labor Relations Act (NLRA). Microsoft Corporation, Case 19-CA-364190, Advice Memorandum (July 10, 2026). The Advice Memo offers important guidance on a critical question: when does a protest lose its protection under the Act because its connection to workplace demands is too attenuated? The Division distinguished this case from Home Depot USA, Inc., 373 NLRB No. 25 (2024). The NLRB in Home Depot held that an employee’s refusal to remove a “BLM” message from a work apron was protected activity because it was a “logical outgrowth” of group complaints about racial discrimination at that specific workplace. The NLRB in Home Depot reasoned that activity remains protected when “an objective” concerns working conditions—even if other objectives predominate. Source: Proskauer Rose 9/2/26

Layoffs could lead to vesting  retirement plans even if the employee has not met requirements: A reduction in force that causes a “partial termination” of a 401(k) or other qualified plan may require an employer to immediately and fully vest all affected employees in employer contributions, regardless of their scheduled vesting timeline. The IRS benchmark for a rebuttable presumption of partial plan termination is 20%: if employer-initiated turnover reaches or exceeds that threshold during the applicable period — typically a 12-month plan year — the burden shifts to the employer to rebut the presumption. The applicable measurement period is not always limited to a single plan year; a multiphased RIF conducted across multiple years may extend the period, potentially capturing terminations the employer did not initially account for.  Not all terminations count toward the turnover percentage — the IRS focuses on employer-initiated separations — but courts have found that some voluntary terminations sufficiently related to a RIF may be treated as involuntary for partial termination purposes. Failing to recognize a partial plan termination can expose an employer to participant lawsuits alleging vesting failures, IRS or DOL audits, and potential plan disqualification, in addition to the cost of corrective contributions or forfeiture reallocations. Source: Troutman Pepper Locke 8/26/26

With remote worker filing a lawsuit, when does California state law apply? A company may be headquartered in California, employ a worker residing in Utah, have that worker supervised from Washington, and have an employment decision about that worker made by executives who were physically present in Illinois at the time they acted. The question then arises: can the employee bring claims against the employer under California employment law? The California Court of Appeal’s decision in Saberin v. Alation, Inc. (Cal. Ct. App., 1st Dist., Div. 5, No. A174549, July 30, 2026) addresses this question directly. Pejman Saberin was employed remotely from Utah as an engineer by Alation, Inc., a data analytics company headquartered in California. Saberin was arrested while traveling out of state, and Alation subsequently terminated his employment. Saberin initiated legal proceedings in California, and the dispute was submitted to arbitration pursuant to an agreement he had executed. The arbitrator ruled that California state law did not apply, and the Appellate Court affirmed after Saberin appealed. California law was more favorable to them. The court found that the physical location of the actual decisionmakers at the time of the decision is critical. Here, one of the two decisionmakers ordinarily worked remotely from California, but both were in Illinois when they acted, which was dispositive. Source: National Law Review 9/10/26

Retirement plan amendment deadline is December 31, 2026: Plan sponsors of qualified retirement plans face a critical December 31, 2026, deadline to adopt formal amendments reflecting major legislative changes from the CARES Act, SECURE Act, and SECURE 2.0 Act. With less than six months remaining, sponsors must identify applicable provisions, coordinate with vendors and legal counsel, and ensure proper board approval to maintain compliance. The requirement updates include: CARES Act – provided temporary coronavirus-related distribution relief, waived required minimum distributions (RMDs) for 2020, and expanded plan loan limits for qualifying individuals affected by COVID-19;  SECURE Act – extended the required beginning date for RMDs, expanded eligibility for long-term part-time employees, increased the cap on automatic enrollment escalation, and introduced new optional in-service distribution provisions, including qualified birth or adoption withdrawals, among other significant changes to plan design; and SECURE 2.0 Act – further delayed the required beginning date for RMDs, and created new optional in-service distribution provisions, including domestic violence victim withdrawals, emergency expense withdrawals, disaster withdrawals, and terminal illness withdrawals, as well as other new optional plan features such as emergency savings accounts and student loan matching contributions. The SECURE 2.0 Act also expanded Roth contribution options and introduced enhanced catch-up contribution rules, among many other changes. Contact your plan vendor and legal counsel to ensure compliance with these change requirements.  Source: Calfee 7/16/26

New York passes Wage Payment Integrity Act: The New York Legislature has passed Senate Bill 2236-A, the Wage Payment Integrity Act (the Act), which would expand the definition of “wages” under the New York Labor Law (NYLL) to include bonuses and other employment compensation not payable at the employer’s sole and absolute discretion. The Act is designed to address recurring litigation over whether bonuses and other incentive compensation qualify as wages protected under Article 6 of the NYLL. According to the Act’s justification memorandum, courts have interpreted Article 6 too narrowly by excluding certain promised bonuses from wage-payment protections simply because they depend on factors other than an individual employee’s performance. The sponsors contend that this judicial interpretation does not reflect modern compensation arrangements, which frequently depend on team results, company performance, profitability, or market conditions. The goal of the Act is to address this reality. The Act would also strengthen the consequences for failing to maintain or produce written employment terms required by NYLL Section 195 and clarify that higher-earning executive, administrative, and professional employees may pursue civil remedies relating to unpaid benefits and wage supplements despite the inapplicability of NYLL Section 198-c’s criminal penalties. Source: Baker Hostetler 9/11/26