SCOTUS Ends Legal Challenge Filed by Former NLRB Member Wilcox. The Supreme Court of the United States has denied the petition for a writ of certiorari filed by former National Labor Relations Board Member Gwynne Wilcox, ending her challenge to President Trump’s decision to remove her from the Board in late January 2025. This leaves in place a December 2025 decision by the U.S. Court of Appeals for the District of Columbia Circuit upholding Wilcox’s removal. It also confirms that the Supreme Court’s decision in Slaughter applies to the National Labor Relations Act’s “for-cause” removal protections (which require that members only be removed for “neglect of duty or malfeasance in office”). Future presidents will therefore be empowered to assert political control over the NLRB more quickly, though politics and the U.S. Senate will still have roles to play. Brian E. Hayes and Zachary V. Zagger have more.
EEOC Poised to Scrap Guidance on Disparate Impact. The U.S. Equal Employment Opportunity Commission (EEOC) is on the precipice of rescinding its 1978 Uniform Guidelines on Employee Selection Procedures. As forecast in the Commission’s regulatory agenda, made public in July 2026, a draft final rule rescinding the guidelines is currently under review by the Office of Information and Regulatory Affairs (OIRA). After OIRA completes its review, which usually takes several weeks, the EEOC will issue the rule to rescind the Guidelines. There was no notice-and-comment opportunity for this action.
The guidelines provide employers with a framework for demonstrating that a selection procedure with an adverse impact on certain groups is job-related and consistent with business necessity. EEOC’s pending rescission of the guidelines does not amend federal employment discrimination law, which still allows for a disparate impact theory of discrimination. However, the action is consistent with the Commission and the administration’s broader deemphasis of the theory. (The EEOC’s recent step towards rescinding its guidance on the use of criminal background checks is another example.) In June 2025, the U.S. Department of Justice’s (DOJ) Office of Legal Counsel issued an opinion letter positing that the Uniform Guidelines were both contrary to Title VII of the Civil Rights Act of 1964 and the U.S. Constitution. T. Scott Kelly and Nonnie L. Shivers have additional details.
DOL Scraps Opinion Letters that Contravened Current Law on Tipped Employees. On October 19, 2026, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued Field Assistance Bulletin No. 2026-1, which withdraws three old opinion letters relating to the tip credit and 80/20 guidance for dual jobs. In 2021, under President Biden, WHD finalized its “dual jobs” rule, which implemented a difficult-to-administer standard that requires employees to “receive the full minimum wage from their employer whenever non-tipped, directly supporting work exceeds 20 percent of their workweek or 30 continuous minutes.” That rule was vacated in 2024 by the Fifth Circuit Court of Appeals as being inconsistent with the Fair Labor Standards Act (FLSA). Because the three old opinion letters contained analysis that was rejected by the court in 2024, they “no longer reflect Division policy and, in some respects, do not accurately state the law” and were, therefore, withdrawn.
In the most recent Unified Agenda of Federal Regulatory and Deregulatory Actions, WHD has indicated it will issue a new proposal relating to tipped employees under the FLSA. That proposal was scheduled for release in August 2026, so it should be issued shortly.
GAO Report: OFCCP Should Resume Section 503 Compliance Obligations. An October 2026 report by the Government Accountability Office criticizes the Office of Federal Contract Compliance Programs’ efforts to enforce Section 503 of the Rehabilitation Act of 1973, which prohibits federal contractors from discriminating against individuals with disabilities in employment. Though President Trump revoked EO 11246 (which prohibited covered federal contractors from discriminating in employment on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin), the Office of Federal Contract Compliance Programs (OFCCP) within the DOL still retains authority to enforce 503, as well as the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA).
The report, requested by Senators Bernie Sanders (D-VT) and Kirsten Gillibrand (D-NY), finds that OFCCP has stopped collecting Section 503 Affirmative Action Plans through the Contractor Portal and has also stopped Section 503 compliance audits of select contractors. The report also states that resources on recruiting and retaining individuals with disabilities, as well as guidance on demonstrating compliance with Section 503, have been removed from OFCCP’s website. Accordingly, the report recommends that OFCCP should resume both “collecting certification of AAPs from contractors through its Contractor Portal or other mechanism” as well as “audits related to Section 503 compliance.” In response, DOL stated that it does not plan to resume AAP certification or compliance audits but will continue to investigate individual complaints.
Distill My Heart. This week, the Supreme Court took up a case that will determine the constitutionality of an 1868 law banning the distilling of spirits within homes. As the Buzz has discussed, distilled spirits have been subject to taxation and, therefore, controversy, since the nation’s founding. In 1868, Congress banned distilling spirits at home because this practice made it much easier for home distillers to conceal their alcohol production and avoid paying taxes on their hooch. Violators of the ban are subject to a $10,000 fine, imprisonment for up to five years, or both, for each offense. In this case, distilling enthusiasts challenged the law as violating the Constitution’s Commerce, Taxation, and Necessary and Proper clauses.
The Fifth Circuit Court of Appeals held the ban on in-home distilling violates the Constitution’s Necessary and Proper Clause because it doesn’t advance Congress’s constitutional power to collect taxes. To the contrary, the court maintained, the ban doesn’t facilitate the collection of taxes but instead serves as “an anti-revenue provision that prevents distilled spirits from coming into existence” and is simply “a pure prohibition of conduct that might otherwise have generated taxable products.” The court also reasoned that, under the federal government’s logic, home-based businesses and remote work could be criminalized as well, because both could potentially conceal taxable activity. The federal government subsequently appealed to the Supreme Court.
The Supreme Court is expected to hear oral arguments in the case in early 2027 and issue a decision later in the spring.
