March 9, 2026

Welcome!

This is the first issue of SuperVision in 2026 covering a variety of topics, including the NLRB and what to expect with its newly constituted quorum, the impact on employers of the EEOC’s recission of its 2024 Harassment Guidance, best practices for layoffs and reductions-in-force, the impact of the newly proposed Department of Labor independent contractor rule, and a discussion of potential employer liability for harassment and discrimination by third parties.

 

The goal of SuperVision is to provide employers with valuable and timely information about labor and employment issues that may impact their business, employees, and operations. Another valuable service provided by Spilman’s labor and employment team is serving as independent workplace investigators. Whether investigating claims of harassment and discrimination, workplace misconduct, or other highly sensitive workplace matters, Spilman attorneys are skilled at conducting these investigations. If you have any questions about workplace investigations, please reach out to us. You may also click here to learn more about our workplace investigations practice.

 

With spring approaching, Spilman is excited about multiple upcoming conferences and meetings and hope we will see you at one or more of these events:

 

American Bar Association’s 2026 National Conference on Equal Employment Opportunity Law, New Orleans, LA, March 17-20

Please join us in New Orleans for this premier destination for employment attorneys seeking to stay ahead of the curve on cutting-edge employment law issues. In addition to a wide variety of topics, our own Carrie Grundmann will be presenting “Suds and Substance: Current Trends in Litigating Reductions in Force, Layoffs, and Reorganizations.” Click here to learn more.

 

West Virginia Chamber’s 2026 Women’s Leadership Summit, White Sulphur Springs, WV, March 25-27

We are very pleased to sponsor and participate in this conference, bringing together West Virginia’s most influential leaders for two days of inspiration, professional growth, and meaningful connection. Click here to learn more.

 

West Virginia State Bar Annual Meeting – Constitutional Conversations, Charleston, WV, April 19-20

As a sponsor, we invite you to join us for this top-tier event exploring the evolving landscape of constitutional law in a thoughtful and engaging way. Through practical presentations and meaningful discussion, speakers will share insights on core constitutional principles and how they intersect with today’s legal challenges. Click here to learn more.


Charleston SuperVision, Charleston, WV, June 18

SAVE THE DATE! Join us in Charleston on June 18 for our in-person SuperVision Labor & Employment Symposium, an all-day, free legal seminar. This program will dive into many hot topics of interest to business owners, HR professionals, and anyone who manages employees. More information will be coming soon!


20th Annual American Bar Association's Labor & Employment Law Conference, Washington, D.C., November 4-7

Please join us in Washington, D.C. this November for one of the most comprehensive meetings regarding labor and employment law. This signature event will offer cutting-edge and in-depth programs covering developments across the full range of labor and employment law topics. Spilman’s own Eric Iskra will be the incoming Chair of the Section, and Carrie Grundmann is serving as Vice-Chair of the planning committee for this event. More details will be coming soon, but you can learn more about future events here.

 

Eric W. Iskra, Member in Charge of Lawyer Administration; Chair, Labor and Employment Practice Group; Chair-Elect, ABA Labor and Employment Law Section



Carrie H. Grundmann, Member; Chair, Energy Law Practice Group; Executive Editor, SuperVision

A Return to Business at the NLRB: What to Expect with a Newly Constituted Quorum

By Kevin L. Carr


The National Labor Relations Board (NLRB) enters 2026 in a much stronger position than it occupied for much of the previous year. After operating without a quorum for nearly a year—rendering it unable to issue key decisions—the agency has been revitalized through new appointments from the Trump administration. This shift creates a 2-1 Republican majority on the Board, alongside a new General Counsel, setting the stage for a more employer-friendly direction in federal labor law enforcement under the National Labor Relations Act.

 

The change began in earnest in early January 2026, when General Counsel Crystal Carey was sworn in, joined by Board Members James Murphy and Scott Mayer on January 7. These confirmations, finalized by the Senate in late 2025, ended the agency's paralysis and allowed it to resume full operations. With holdover Democratic Member David Prouty, the Board now has the quorum needed to address a substantial backlog of unfair labor practice charges and representation cases.

 

Early signals from the new leadership point to a deliberate focus on stability, predictability, and institutional repair rather than abrupt overhauls. 


Click here to read the entire article.

EEOC Rescinds 2024 Harassment Guidance

By Jason Wandling


On January 23, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted 2-1 to rescind its “Enforcement Guidance on Harassment in the Workplace” enacted in April 2024. This is a move that was expected and was in line with an EEOC press release issued on January 28, 2025, where EEOC Chair Andrea Lucas was quoted as saying, “[t]he Commission’s harassment guidance was fundamentally flawed,”…and “[t]he EEOC must rescind the guidance and protect the sex-based privacy and safety needs of women.” The timing for this decision is also not unexpected, as a quorum was only established in October 2025 with the confirmation of Brittany Bull Panuccio.


Spilman previously reported on the enactment of the 2024 guidance here, which represented the first comprehensive update to the EEOC’s harassment guidance in over 25 years. At the time, many viewed it as a comprehensive interpretive resource explaining how federal anti-discrimination statutes like Title VII of the Civil Rights Act of 1964 apply to workplace harassment claims. Indeed, the withdrawn guidance provided detailed explanations and practical examples of conduct that could constitute unlawful harassment based on protected characteristics such as race, sex, sexual orientation, gender identity, religion, disability, and age. It was used by employers to shape internal policies, training programs, and investigative protocols. By eliminating the document in its entirety, the Commission removed a key federal reference point that many organizations relied upon for compliance clarity.


Click here to read the entire article.

Best Practices in Layoffs, Reductions in Force, and Reorganizations 

By Carrie H. Grundmann


According to Challenger, Gray and Christmas, an outplacement services company, layoffs in October 2025 hit the highest level in more than 20 years. We have recently seen announced job cuts from within our footprint, including in West Virginia and Virginia. There have also been numerous announcements around the country of layoffs and RIFs from Amazon, Citi, and eBay. There is no doubt that workforce reductions are on the rise. This article discusses the best practices and legal considerations for employers evaluating reductions to its workforce.


Click here to read the entire article.

Don’t Let the DOL’s Proposed New Independent Contractor Rule Tempt You to Change Your Decision-Making Process When Classifying Workers

By Mitchell J. Rhein


On February 26, 2026, the Department of Labor (DOL) announced a proposed rule for determining whether a worker is an independent contractor or employee. This is the latest salvo in an issue that has swung back and forth with each change in administration. Indeed, we have previously reported on prior iterations of changes to this rule in 2024 and even earlier in 2015.

 

With the most recent revisions, the DOL advertised that the proposed rule promotes predictability and clarity. The proposed rule likely will not provide long-term predictability or clarity for employers considering whether to classify workers as independent contractors or employees. If implemented, employers should carefully review the rule and consider its impact on their past and future decisions to classify workers as independent contractors. Even if the proposed rule is put into practice, employers should continue to adopt a thoughtful and long-term analysis when classifying workers as independent contractors.  


Click here to read the entire article.

Employer Liability for Third Party Discrimination:

A Reminder and Refresher on the Law

By Chelsea E. Thompson


With winter slowly fading out, some spring cleaning of old employment policies may be in order. Recent Title VII decisions should prompt wary employers to dust off their anti-discrimination and anti-harassment policies and reevaluate if they offer the necessary protection from not just employees who act inappropriately—but also third parties.


Third party discrimination occurs when an employee suffers discrimination or harassment based on a protected characteristic, but not at the hands of a fellow employee. Instead, someone outside the company—the titular “third party”—is the perpetrator. These third parties may include vendors, clients, customers, contractors, temporary workers, independent contractors, or members of the public. Depending on the nature of the business, employees may be interacting with many different third parties (or many different kinds of third parties), any one of which may pose a discriminatory threat. 


Click here to read the entire article.
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This is an attorney advertisement. Your receipt and/or use of this material does not constitute or create an attorney-client relationship between you and Spilman Thomas & Battle, PLLC or any attorney associated with the firm. This e-mail publication is distributed with the understanding that the author, publisher and distributor are not rendering legal or other professional advice on specific facts or matters and, accordingly, assume no liability whatsoever in connection with its use.

Responsible Attorney: Eric W. Iskra, 800-967-8251

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