Articles by Our Attorneys

February 2026 brings significant developments across the employment law landscape, from heightened federal scrutiny of DEI programs and tightened limits on restrictive covenants to another consequential turn in the evolving joint-employer standard. Read the details below. 

EEOC’s Subpoena of Nike Signals Sweeping Shift in Federal Scrutiny of Corporate DEI Programs

On Feb. 4, the U.S. Equal Employment Opportunity Commission (EEOC) asked the U.S. District Court for the Eastern District of Missouri to enforce an administrative subpoena against Nike Inc., marking a dramatic shift in federal scrutiny of corporate diversity, equity and inclusion (DEI) programs. The subpoena stems from a May 2024 charge filed by then-Commissioner Andrea Lucas alleging that Nike engaged in a pattern or practice of intentional discrimination against white employees and applicants, or alternatively caused unlawful disparate impact. 

Although Nike previously entered into a settlement agreement with the EEOC in January 2025, the agency later rescinded the agreement without explanation, reassigned the investigation and expanded its information requests. The subpoena seeks extensive documentation dating back as early as 2018, including data on executive compensation tied to minority workforce metrics, use of “diverse slates” in hiring, demographic tracking, layoffs, promotions and 16 DEI-related programs. The agency is demanding granular, employee-level data in sortable databases, signaling an expansive and detailed review of personnel decisions. 

The investigation reflects a broader enforcement pivot following the January 2025 change in administration. Practices once encouraged as voluntary affirmative action or diversity efforts are now being reframed as potential evidence of systemic discrimination. For federal contractors, the risk is heightened by potential False Claims Act exposure and collaboration between enforcement agencies. 

In this evolving environment, employers are urged to strengthen compliance programs. Recommended steps include objective job qualifications, careful applicant tracking, privileged statistical audits, compensation analyses and thorough investigation of all discrimination complaints. Proactive compliance and documentation are now essential to mitigate legal risk while maintaining equitable workplace practices. 

Pennsylvania Superior Court Affirms Denial of Injunction Against Former FNB Advisers Joining Competitor 

The Pennsylvania Superior Court has affirmed a lower court’s decision denying an injunction sought by First National Trust Co., doing business as FNB Wealth Management, against three former financial advisers who left to join a competitor. The ruling allows Stephen G. English, Benton Elliott Jr. and Zachary A. Craig to continue working for Capital Wealth Advisers, finding they did not violate their restrictive covenants. 

In a decision authored by Judge Mary Murray, a three-judge panel upheld the Allegheny County court’s determination that the nonsolicitation provisions in the advisers’ contracts were unenforceable as written. The court also rejected allegations that the advisers conspired with Capital Wealth to misappropriate trade secrets or solicit clients improperly. 

According to the opinion, the advisers did not provide customer lists or account information to their new employer. Instead, they shared only generalized, rounded estimates of their compensation for financial modeling purposes. The trial court concluded that such information was not proprietary. 

The advisers resigned from First National on Jan. 31, 2025, and began working at Capital Wealth the following Monday. Testimony indicated they did not directly solicit former clients; some clients reportedly learned of their departure from First National and independently chose to follow them. 

The decision clarifies limits on broad restrictive covenants and underscores the evidentiary burden employers face when seeking injunctive relief. 

The case is First National Trust Co. d/b/a FNB Wealth Management v. Stephen G. English et al., case number 1109 WDA 2025 in the Pennsylvania Superior Court. 

NLRB Rules Browning-Ferris Must Bargain as Joint Employer in Landmark Labor Dispute 

In a pivotal decision in the long-running Browning-Ferris dispute, the National Labor Relations Board ruled Monday that Browning-Ferris Industries of California must bargain with workers supplied by staffing firm Leadpoint Business Services. The unanimous three-member panel concluded that Browning-Ferris is a joint employer of Leadpoint employees at the Newby Island Recyclery in California because it exercises both direct and indirect control over their working conditions. 

The ruling marks the fourth time in more than a decade that the board has addressed the joint-employer question in this case, which has become central to national debates over shared liability under the National Labor Relations Act. Acting in response to a 2022 D.C. Circuit remand, the board applied its 2015 joint-employer standard — which permits a finding of joint employment based on indirect control — rather than the narrower 2020 rule requiring direct control. 

The board cited Browning-Ferris’ authority to set production pace, cap wages Leadpoint may pay, instruct supervisors and require the removal of certain employees as evidence of sufficient control. While emphasizing that its analysis applies only to this case under the 2015 standard, the decision advances a “test of certification” strategy that could return the dispute to federal court. Nearly 13 years after voting to unionize, the workers move closer to collective bargaining with the facility operator. 

The case is Browning-Ferris Industries of California, Inc., et al. and Sanitary Truck Drivers and Helpers Local 350, case number 32-CA-160759, before the National Labor Relations Board. 

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment. Jeff also practices in commercial litigation as well as counsels businesses on commercial contract matters.