As we close out 2025 and look to 2026, I surveyed some of my fellow partners in the labor and employment group and asked them to answer two questions:

1. What was the biggest issue facing employers in 2025?
2. Can you offer a prediction on the biggest issue employers will face in 2026?

The Biggest Issue Facing Employers in 2025

Maybe it was the benefit of hindsight, but I was surprised to find a unanimous consensus among my colleagues as to the answer to Question No. 1. Eric Iskra, Kevin Carr, Jeff Patton, and Pete Rich all agreed that the biggest issue employers faced in 2025 was navigating the politically charged dialogue and atmosphere permeating the workplace.

We live in a time where people are more divided and opinionated than ever. These viewpoints inevitably end up in the workplace and can raise any number of issues. On the one hand, such differences of opinion can simply make it harder for employees to work with one another. On the other hand, it can raise concerns about – and potential liability for the employers for – employment discrimination and harassment claims. Trying to find the appropriate balance of employee free expression versus an employer’s need to ensure a civil and productive workplace is a difficult balance to strike.

This issue will certainly continue into 2026, but my colleagues were not given the option to identify this issue as their prediction for the biggest issue facing employers next year.

Predictions for 2026

While there was unanimous consensus as to the biggest issue in 2025, I received a greater variety of responses for what my colleagues see on the horizon in 2026.

Eric Iskra is looking out for the role the EEOC will play in 2026. On October 7, 2025, Brittany Panuccio was confirmed to the EEOC, establishing a quorum for the first time since January 2025. With a quorum and the authority to act, we expect to see action from the EEOC on a variety of issues including religious discrimination, DEI, anti-American national origin discrimination, sex discrimination focused on the biological reality of sex, and other issues. We also expect the EEOC will seek to replace some or all of the Harassment Guidance that was finalized in April 2024. The Commission is also likely to issue a new Strategic Enforcement Plan focused on far different issues that the plan enacted during the Biden Administration.

Kevin Carr and Pete Rich, two of Spilman’s skilled labor lawyers, both see AI as having the biggest impact on employers in 2026. From a labor and employment perspective, AI has the potential to displace the need for human bodies in the workplace, raising the potential for layoffs, reductions in force, and an increase in litigation claiming the terminations were not due to efficiencies but discrimination.

At this point, AI is almost required in the modern workplace. Uses of AI are increasing nearly daily. Whether and how it will impact the workplace is surely to be a hot topic in 2026.

Finally, Jeff Patton continues to see the potential for issues with restrictive covenants in 2026. While the action across the federal government has cooled in recent months, the activity at the state level has not. Employers need to be mindful of the patchwork of state laws that govern restrictive covenants so they can ensure they are compliant both now and into the future.  Employers should consider devoting resources in 2026 to analyze their contracts and restrictive covenants to ensure they pass muster today, but also are robust enough to weather the storm should additional laws, whether state or federal, be enacted.

Spilman’s labor and employment team stays on top of these and other issues year-round. We welcome the opportunity to assist employers faced with these issues to help ensure your success in 2026 and beyond.

We wish everyone Happy Holidays and a prosperous New Year!