Blank Rome Labor & Employment Alert: New Proposed IRS Regulations Expand Benefits Available to Highly Compensated Employees Under Dependent Care Assistance Plans

Daniel L. Morgan ●

November is typically when companies have open enrollment for their benefit plans for the upcoming calendar year.

This summer, employers received a nice surprise when the Internal Revenue Service (“IRS”) issued proposed regulations for dependent care assistance plans (“DCAPs”), which clarified an issue that had bedeviled employers since 1981, when Congress added section 129 to the Internal Revenue Code to provide tax-favored treatment for DCAPs.

As explained below, the guidance in these regulations may have significant implications for employers who maintain DCAPs.

DCAP Nondiscrimination Testing

DCAPs are plans that typically are structured to permit employees to make salary-reduction contributions, which are returned in the form of tax-free reimbursements or payments for qualifying dependent care expenses. In addition to annual statutory benefit limits ($7,500 in 2026), DCAPs must satisfy four nondiscrimination tests: (1) a contributions and benefits test, (2) an eligibility test, (3) a test limiting benefits for more-than-5 percent owners to 25 percent of a plan’s annual benefits, and (4) a test which requires a plan’s annual average benefits for non-highly compensated employees (“NHCEs”) to be at least 55 percent of the average benefits of highly compensated employees (“HCEs”). The terms “NHCE” and “HCE” have the same definitions as those terms have under the 401(k) plan nondiscrimination testing rules.

The issuance of these regulations was prompted by a provision in the 2025 One Big Beautiful Bill Act legislation that created Trump Accounts. Employer-sponsored Trump Account contribution programs must satisfy nondiscrimination requirements akin to those applicable to DCAPs.

To read the full alert, please visit our website.

Blank Rome Labor & Employment Alert: New Jersey Employers Must Use New Portal to Report Separations

Daniel J. Sobol, Julia C. Riskowitz, and Sarah M. Kirkpatrick ●

Daniel Sobol headshot photo

New Jersey employers are now required to report all employee separations through the new “Employer Response Portal” recently launched by the New Jersey Department of Labor (“NJDOL”). This new requirement applies to every type of separation—resignations, terminations, retirements, and layoffs—regardless of whether the departing employee files for unemployment benefits. This new requirement is separate from, and in addition to, the existing requirement that employers provide departing employees with Form BC-10.

Background

On November 3, 2022, Governor Phil Murphy signed P.L. 2022, c. 120, which amended New Jersey Unemployment Compensation Law to impose new separation reporting requirements on employers. Under the amended law, employers must “immediately and simultaneously” report each separation electronically, providing the date of separation and other information the NJDOL uses to determine benefits eligibility. Although the law took effect on July 31, 2023, the NJDOL delayed enforcement until it could build a dedicated online reporting system.

With that new system completed, the NJDOL has launched the Employer Response Portal, an online platform designed to streamline the reporting process. Employers are now required to use the portal to report separations within seven days of an employee’s separation date. 

To read the full alert, please visit our website.

Blank Rome Labor & Employment Alert: NLRB General Counsel Issues Memorandum Outlining Top Priorities

Daniel J. Sobol, Brandon S. Shemtob, and David G. Rodriguez

Daniel Sobol headshot photo
Brandon Shemtob headshot photo
David Rodriguez headshot photo

The National Labor Relations Board’s (“NLRB”) General Counsel, Crystal Carey, drew applause, as well as some criticism, earlier this year when she departed from her predecessors by declining to issue a “Mandatory Advice Memo”—a memorandum that would have outlined her litigation priorities and identifying caselaw she wished to overturn by instructing the NLRB’s regional offices to submit all such cases to the agency’s Division of Advice. Instead, in January 2026, she issued a memorandum declaring her top priority as tackling the NLRB’s historic case backlog.

Timed to coincide with the recent confirmation of James Macy as the Board’s third Republican appointee, it appears that the General Counsel is prepared to declare a victory, of sorts, over the federal watchdog’s backlog and to press forward with efforts to overturn Union-friendly precedent—much of which was issued during the latter half of the Biden Administration. Traditionally, the NLRB’s five-member quasi-judicial Board overturns prior precedent where it has three votes in favor of doing so. Member Macy’s confirmation earlier this month provided the Board with just such a majority.

To read the full alert, please visit our website.

Blank Rome Labor & Employment Alert: D.C. Circuit Rejects NLRB “Successor Bar” for Unionized Business Acquisitions

Daniel J. Sobol, Brandon S. Shemtob, and David G. Rodriguez

Daniel Sobol headshot photo
Brandon Shemtob headshot photo
David Rodriguez headshot photo


What employers should know about union recognition, employee majority support, and bargaining obligations after a business acquisition.

The D.C. Circuit has invalidated the National Labor Relations Board’s (“NLRB”) “successor bar,” a rule that required a new owner of a unionized business to recognize and bargain with the incumbent union for up to one year after the ownership change before employees could challenge the union’s status. When an employer acquires a predecessor’s business, it is required to recognize the incumbent union if a majority of the successor’s workforce is made up of employees from its predecessor. The court held that the successor bar rule conflicts with the National Labor Relations Act because it blocks employees, employers, and rival unions from testing whether the incumbent union still represents a majority of employees.

Background

The employer, Hospital Menonita de Guayama (“Hospital”), acquired another hospital in 2017 where employees had long been represented by a union in five separate bargaining units. Hospital set initial terms, hired a majority of the unionized employees, and recognized the union. Over the course of five months following this initial recognition, Hospital received evidence that a majority of employees in each unit rejected the union as their representative. An employer may not solicit this sort of evidence, which must be presented by the unionized employees themselves. After Hospital refused to bargain and informed the union it would no longer recognize it as the employee’s designated representative, the NLRB found unfair labor practices and ordered Hospital to recognize and bargain with the union. The Supreme Court later vacated the D.C. Circuit’s initial decision upholding the successor bar and remanded for reconsideration after Loper Bright Enterprises v. Raimondo, which overruled Chevron deference.

To read the full alert, please visit our website.

From Fixable to Fineable: ICE’s Overhaul of I-9 Violation Classifications

Mark Blondman and Gabrielle I. Weiss ●

For nearly 30 years, employers completing Form I-9s operated under a forgiving framework: make a minor administrative mistake, like a missing date, an omitted title, and you had 10 days to fix it without penalty. That safety net just got a lot smaller. Without a formal announcement or rulemaking process, U.S. Immigration and Customs Enforcement (“ICE”) recently posted updated guidance that reclassifies many common administrative errors as “substantive” violations subject to immediate fines. The practical effect is significant: errors that used to be correctable now carry per-violation penalties ranging from $288 to $2,861, and they add up fast.

Here’s what changed, why it matters, and what employers should be doing about it.

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Same ABCs, New Rules: New Jersey Finalizes Updated Regulatory Framework for Worker Classification

Gabrielle I. Weiss ●

On May 5, 2026, the New Jersey Department of Labor and Workforce Development (“NJDOL”) filed its final rule adopting N.J.A.C. 12:11, which provides regulatory guidance on how the state’s longstanding “ABC” test is applied to determine whether a worker is an employee or an independent contractor. The final rule, which carries an operative date of October 1, 2026, arrives after a contentious rulemaking process that drew sharp criticism from financial services and insurance to construction and app-based transportation. While the ABC test itself is nothing new in New Jersey—it has been the statutory standard for nearly 90 years—these rules represent the first comprehensive regulatory framework explaining how the NJDOL interprets and applies the test. Critically, the ABC test in New Jersey governs not just unemployment insurance but also the state’s Wage and Hour Law, Wage Payment Law, Earned Sick Leave Law, and Temporary Disability Benefits Law, giving these rules a practical reach far broader than similar regulations in most other states. Employers operating in the state should begin evaluating their independent contractor relationships now to prepare for implementation.

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DOL Proposes New Joint Employer Rule Under the FLSA, FMLA, and MSPA

Nikki D. Kessling ●

The U.S. Department of Labor’s (“DOL”) Wage and Hour Division announced a proposed rule on April 22, 2026, to address how “joint employer” status is determined under the Fair Labor Standards Act (“FLSA”), Family and Medical Leave Act (“FMLA”), and Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”). The DOL’s previous attempt at a joint employer rule, issued in 2020, was rescinded in 2021 following its partial invalidation in New York federal court. The proposed rule was published in the Federal Register on April 23.

The DOL’s new proposal—which appears to be a practical effort at clarification rather than an attempt to blaze new trails—would set a unified standard across the FLSA, FMLA, and MSPA for when two or more entities share responsibility for the same workers. Companies using staffing agencies, subcontractors, franchise models, or other multi-employer arrangements should take note.

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What Does IBM’s $17 Million FCA Settlement Portend for Government Contractors Wrestling with Compliance?

Jennifer A. Short, Dominique L. Casimir, Brooke T. Iley ●

On Friday, April 10, 2026, the Department of Justice (“DOJ”) announced a $17 million False Claims Act (“FCA”) settlement with International Business Machines (“IBM”), based on the company’s alleged violations of federal anti-discrimination laws. The settlement is the first under the DOJ’s Civil Rights Fraud Initiative, created last May with the objective of investigating and prosecuting “illegal DEI” practices, primarily through an FCA lens. Coupled with a new Executive Order—issued on March 26—that imposes contract prohibitions on “racially discriminatory DEI activities” in federal government contracts and subcontracts, the IBM settlement signals an escalation in the government’s focus on DEI programs and employment policies.

The DOJ Press Release and Settlement Agreement

The Alleged “Covered Conduct” Identifies Specific Problematic Practices. 

DOJ alleged that IBM improperly made employment decisions based on protected characteristics through specific programs and actions, described as the “Covered Conduct” for purposes of the settlement agreement:

  • Compensation Incentives: A “diversity modifier” linking bonus compensation to demographic targets
  • Hiring and Promotion Criteria: Basing interview eligibility or prioritization on race, sex, or national origin
  • Demographic Goals for Business Units: Developing race and gender targets tied to employment decisions
  • Limited-Access Programs: Limiting training, mentoring, and leadership development to employees meeting specific demographic criteria, such as minorities.

To read the full alert, please visit our website.

California’s AB 692 Reins in “Stay or Pay” Provisions in California Employment Agreements

Taylor C. Morosco ●

Taylor C. Morosco's headshot photo

California’s Assembly Bill (“AB”) 692 took effect on January 1, 2026, significantly limiting the use of commonplace “stay-or-pay” clauses in offer letters and agreements, which require employees or prospective employees to repay certain costs if their employment ends.

AB 692 underscores California’s commitment to limit the use of contractual provisions restricting or disincentivizing workforce mobility. Although the new law does not apply retroactively (essentially grandfathering in “stay-or-pay” clauses entered into before January 1, 2026), employers must audit agreements and practices, and plan for compliance to avoid significant potential liability going forward.

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New Jersey Steps Into Fray, Bans Mandatory Employee Meetings

David G. Rodriguez and Derek E. Schultz ●

New Jersey Governor Phil Murphy signed into law significant amendments to the New Jersey Employer Political Communication Restrictions Act (the “Act”) on September 3, 2025. These amendments, which take effect on December 2, 2025, make New Jersey one of 12 states in the nation to prohibit employers from holding captive audience meetings to discuss unionization with employees.

KEY PROVISIONS

The Act Will Prohibit Employers from Holding Mandatory Meetings on Unionization

Employers and their agents will be prohibited from requiring employees to attend meetings or participate in communications where the purpose is to convey the employer’s opinion about unionization. This restriction will apply to all employers in New Jersey, including those in both the private and public sectors.

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