A recent decision by the United States Court of Appeals for the Second Circuit clarified the reach of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”), with significant implications for employers in New York, Connecticut, and Vermont seeking to enforce arbitration agreements.
On September 30, 2026, in Diaz-Roa v. Hermes Law, P.C.,[i], the Second Circuit held that when an employee properly invokes the EFAA, a pre-dispute arbitration agreement is unenforceable as to the entire lawsuit, not just the sexual harassment or sexual assault claims. That means other claims brought in the same lawsuit – even claims entirely unrelated to sexual harassment or sexual assault – must also proceed in court rather than arbitration.
For years, the UK and US have approached whistleblowing from slightly different starting points. The UK’s regime has primarily focused on preventing those who speak up from being subject to any detriment for having done so. The US has gone a step further, using financial incentives to encourage whistleblowers to bring information directly to regulators. The US has been something of a trailblazer in this regard, with only a small number of other jurisdictions (e.g. Canada/South Korea) adopting financial incentive models. Most global systems remain protection-based, rather than incentive-based, though the “tone” of the UK legislation has historically been more that whistleblowers are a necessary nuisance to be tolerated rather than a force for good to be encouraged.
Over the course of the last decade or so, UK policymakers and regulators have periodically considered but largely resisted US-style bounty schemes. As far back as 2014, the Financial Conduct Authority (FCA) issued a note on “Financial Incentives for Whistleblowers“, examining the proposition but ultimately rejecting it.
Under Belgium’s Private Investigations Act (the “PIA”), an employer may only investigate its employees if the detailed rules governing such investigations are laid down expressly and transparently in a set of internal regulations. Employers were given a transitional period of two years from the PIA’s entry into force to put these regulations in place. That period ends on 16 December 2026.
In the first two blogs in this series, we set out the scope of the PIA and how an investigation under the PIA must be conducted. In this third and final blog, we look at which employers must adopt regulations, the form these may take, what they should cover and the consequences of non-compliance. We also address the recently started political talks on possible amendments to the PIA, which, for now, do not affect the deadline.
On October 5, 2026, the Second Appellate District of the California Court of Appeal held in Doe v. Wells Fargo Bank, N.A., No. B344642, that an employer was not strictly liable under the California Fair Employment and Housing Act (FEHA) for harassment perpetrated by the plaintiff’s coworker when that coworker was a supervisor of other employees but not a supervisor of the plaintiff. In Doe, the plaintiff and several coworkers traveled to another city for client meetings. After their meetings concluded, the plaintiff and her coworkers had dinner and drinks. The plaintiff claimed that a coworker sexually assaulted her. Although the coworker admitted to a sexual encounter with the plaintiff, he claimed that it was consensual.
In part one of this series, we established that the scope of the Private Investigations Act (the “PIA”) is considerably broader than one might assume: if you carry out a workplace investigation internally within a company, you are in principle caught by the stringent provisions of the PIA.
In this blog, we zoom in on the procedural requirements for an investigation.
For many employers, personnel file access laws are familiar territory. Although the requirements vary by state, these laws generally grant private sector employees (and sometimes former employees) a statutory right to review and obtain copies of certain records contained in the personnel file maintained for them by their employer.
Nineteen states[i] currently have some form of personnel file access law applicable to private sector employers. Until recently, New York was not one of these states. Although employees in New York could have access to their personnel file if granted through a collective bargaining agreement, there was no personnel records access requirement generally applicable to private sector New York employers.[ii]
A recent decision from the U.S. District Court for the Middle District of Pennsylvania, Johnson v. York Academy Regional Charter School, reminds employers of their obligation to meaningfully participate in the process of identifying reasonable accommodation of their employees’ religious beliefs.
Monik Johnson was employed by a charter school as a business manager. Many years into her employment, Ms. Johnson began observing the Lunar Sabbath, which required her not to work on the day of the New Moon, which varies from month to month depending on the lunar cycle. Ms. Johnson sent a letter to the school’s CEO requesting to work four ten-hour workdays in the weeks when the Lunar Sabbath fell on a weekday so she could be absent from work on the New Moon.
On September 23, 2026, the National Labor Relations Board (NLRB or Board) delivered welcome news to employers when it clarified the controlling framework for deciding whether an employee’s abusive conduct loses the protection of the National Labor Relations Act (NLRA). Specifically, in Lion Elastomers LLC, 375 NLRB No. 41 (2026) (Lion Elastomers III), the NLRB, on remand from the United States Court of Appeals for the Fifth Circuit, held that the Wright Line burden-shifting test it applied in its 2020 General Motors decision “constitutes extant Board precedent” for deciding whether an employee’s misconduct arose in the course of otherwise protected activity was so egregious or abusive to lose the protection of the NLRA. In reestablishing this burden-shifting framework, the Board effectively tossed aside the more employee-friendly, setting-specific standard reintroduced by the Board in 2023 in Lion Elastomers II.
On 16 December 2024, Belgium’s Private Investigations Act (the “PIA”) entered into force, replacing the Private Detectives Act of 1991. While this may sound like news for the detective industry only, the scope of the PIA is considerably wider. In fact, the most significant innovation in the PIA does not concern private detectives at all, but the companies that instruct them. Any business that conducts workplace investigations in-house may fall within the scope of the PIA and become subject to licensing requirements and procedural obligations.
In this first of three blogs, we set out the key provisions in the PIA and why internal workplace investigations may fall within its scope and the licensing requirements that follow.
What counts as a private investigation under the PIA?
The PIA defines private investigation activities by reference to four cumulative criteria. Such activities must:
be carried out by a natural person;
be undertaken on behalf of a principal;
involve the gathering of intelligence obtained by the processing of information about natural or legal persons, or the circumstances concerning acts committed by them; and
be carried out for the purpose of providing that intelligence to the principal, either to safeguard the principal’s interests in the context of an actual or potential conflict, or to trace missing persons or lost or stolen goods.
This definition is sufficiently broad to capture most internal investigations within companies. For example, when an employer investigates suspected fraud, theft, harassment or other misconduct by an employee, it is gathering information about a person in order to safeguard its interests in the context of an actual or potential conflict. Where such activity is organised on a structural basis, which is already the case where investigative tasks form part of the job description of a single employee, the business operates an “internal investigation service” within the meaning of the PIA.
Investigations that are carried out by a group function on behalf of affiliated companies within a multinational group are treated as being carried out for the business’s own purposes rather than for third parties. As a result, compliance, internal audit, security and HR teams investigating matters involving employees in Belgium may need to comply with the PIA, even where the relevant investigation function is located outside Belgium.
Not all workplace investigations undertaken by an employer fall within the scope of the PIA. Certain activities are excluded, including the typical reference checks by HR on job applicants as well as investigations carried out in performance of a legal obligation. This may include some whistleblowing investigations, provided they fall strictly within the scope of the Belgian Whistleblowing Act. The scope of this Act is quite narrow however and in practice many employers operate reporting channels that cover a broader range of concerns than the legislation requires. Furthermore, investigations that start with a report of whistleblowing regularly expand beyond that. If an investigation goes beyond what is required to discharge the relevant legal obligation, or where matters fall outside the scope of an applicable exclusion, full PIA compliance may be required.
Licensing requirements
Under the PIA, private investigation activities, whether by a private investigation company or an internal investigations service, require a license from the Belgian Ministry of the Interior. This obligation to obtain a license may create challenges for multinational companies, as they are more likely to organise their investigation function at group level, outside of Belgium. As we highlighted in a previous blog, such licences are granted for a renewable period of five years and will only be awarded if the members of the investigating team are Belgian nationals or have their main residence in the EEA or Switzerland.
For EEA groups of companies, therefore, there is a potential way out: a license for an internal investigation service can be obtained without an operating seat in Belgium because the Belgian authorities will take into account the guarantees provided in another EEA Member State. For internal investigation functions based outside the EEA, however, no such exceptions are provided, and other avenues will need to be considered to conduct the investigation lawfully. Depending on the circumstances, these may include instructing a licensed investigation company, or having the investigation conducted by external counsel.
The HR exception
HR professionals who carry out investigative activities on behalf of their own employer (legal entity) in the context of an “incident investigation” concerning the employer’s own employees are not required to hold an identification card and are therefore exempt from the associated licensing requirements. However, all other provisions of the PIA continue to apply in full.
The PIA does not define the term ‘incident investigation’, but the explanatory memorandum to the Act indicates that following the identification or suspicion of misconduct such an investigation may include, amongst other things, the analysis of CCTV footage, the retrieval and examination of access control data, the reading of electronic locks or badge readers, and interviewing colleagues.
Without a clear definition of this exception, challenges are to be expected, particularly from employees seeking to have investigation findings excluded as evidence in dismissal proceedings. Employers should therefore assess very carefully whether an investigation falls within the limits of this exception, which must be interpreted narrowly.
In our next blog in this series, we will look at how an investigation under the PIA must be conducted: the role of the GDPR, prohibited fields of investigation, interview rules, the rights of the data subject and the consequences of non-compliance.
To discuss how the Belgian Private Investigations Act may affect your operations and how we can assist your business, please reach out toMarga Caproni, Partner and head of the Belgian Labour & Employment practice.
Spain has adopted Royal Decree 723/2026 of 9 September 2026, introducing a revised framework governing the information that employers must provide to employees regarding the essential terms of their employment and their principal working conditions. The measure partially implements EU Directive 2019/1152 on transparent and predictable working conditions. The Decree was published in the Spanish Official State Gazette on 15 September 2026 and will come into force on 5 October 2026, replacing Royal Decree 1659/1998. These changes represent a significant expansion of the information obligations on employers.
Under the new framework, the Spanish Ministry of Labor and Social Economy, through the Spanish Public Employment Service, must make available an official information document designed to assist employers in complying with these new requirements. This has not yet been published. Employers will be required to comply with the new information obligations from 5 October, regardless of whether the government has published the official information document by then.
