If 2025 felt like employment law was shifting under your feet, 2026 is… not slowing down. Sorry to be the bearer of bad news.
It’s like trying to staple Jell-O to a trampoline: every time you think you’ve secured your policies, a new case, statute, or guidance bounces into view and asks, “Cute. But have you considered this?”
Employers, take a breath. This is where we shine. Treaty Oak takes the legal chaos that keeps you up at night and turns it into the strategic edge your competitors wish they had.
Below, we’ll cover everything from digital evidence to retaliation law to worker classification twists no one saw coming. Ready to get into it?
Text Message Evidence in 2026: Still a Disaster Zone
Nothing ages faster than digital evidence. Screenshots? Editable. Message threads? Fabricatable. Metadata? Misleading. And text messages remain the Wild West of employee communication.
In 2026, courts remain skeptical of unverified digital messages (especially in fair-notice disputes), and opposing counsel will know exactly how to weaponize a sloppy communication trail.
Your defense?
A real, enforceable electronic-communications policy.
Without one:
- Text threads become “he said / she said” on steroids
- Authenticity objections become the norm
- Employees can weaponize or manipulate digital history
- Your case becomes harder (and more expensive) to defend
Do not let your entire litigation strategy hinge on a rogue texted GIF. Let us help you get your legal and IT functions connected for your success.
Worker Classification in the New Year: Still Messy, Still Expensive
Did you think the employee vs. contractor debate would calm down by now? Adorable.
If anything, 2026 will bring:
- More scrutiny of gig-style arrangements
- More disputes over hybrid roles
- More state and federal pressure to treat borderline workers as employees
- More cases challenging the constitutional limits of classification laws
Why should you care?
Misclassification is now one of the fastest paths to multi-claim exposure – wages, overtime, taxes, benefits, unemployment insurance, and sometimes even First Amendment issues, depending on the sector.
This is no longer a mere “compliance box.” It’s a financial strategy decision. And a wrongly classified worker will eat your 2026 margins alive.
Broader, Louder, and More Litigious: 2026 Employee Speech Concerns (Including Volunteers)
If 2025 was the year First Amendment workplace law got loud, 2026 is the year it gets litigated.
Protected Testimony = Mega Exposure
Remember the police captain case? The $21-million punitive damages verdict still stands as a warning: court testimony is extremely protected, and retaliating against it is a catastrophic risk.
Volunteer Speech = Still Protected
Volunteers (yes, volunteers!) continue to have First Amendment rights in certain contexts. That Austin chaplain case isn’t an anomaly; it’s a trend.
Social Media = More Blurred Than Ever
The “public concern vs. personal grievance” test has only gotten harder to apply. With employees increasingly mixing workplace commentary with hot-button social issues, you need:
- A nuanced social media policy
- HR and managers trained on what not to react to
- Documentation that reflects actual decision-making
“Official Duties” = Still Not Protected
Garcetti lives on into 2026. If the speech is part of the employee’s job responsibilities, it’s generally not protected. But misapplying this doctrine is an easy way to invite a lawsuit, so tread carefully.
The Line Between Personal and Public Is Basically Vapor As a New Year in Privacy Law Dawns
Between biometric timekeeping, employee location-tracking tools, AI-driven data systems, and more intrusive discovery requests, privacy law is a moving target in 2026.
Many in the know have questioned whether existing privacy protections are even capable of protecting sensitive data anymore… which puts the onus on employers: you have to be better than the statutes.
If you touch
- Biometric data
- Patient information
- Phone/device logs
- DFPS/police-related data
- Customer identifiers
- HIPAA
…make sure you have ironclad protocols because all yall touch this stuff. Courts continue to issue broad orders compelling data production, and your compliance posture matters more than ever.
2026: The Year of Retaliation? (It’s Still the #1 Claim Employees Bring!)
A new year brings no relief here. Retaliation remains the most common and expensive employment claim, particularly for public employers. Retaliation allegations are cheap and easy for employees, and so very expensive for employers.
Governmental immunity shields some claims, but not all. And private-sector employers? You’re wide open.
The theme this year: causation, causation, causation.
We saw a case where three officers reported allegations to the FBI and were fired or demoted. Why? The court drilled down into whether the evidence tied the protected activity to the adverse action. Knowing this, your HR team should be obsessed with:
- Documentation
- Timing
- Decision rationale
- Consistency
Anything less invites risk.
You Deserve Better Than Reactive HR in 2026
Employment law isn’t getting simpler. But with the right legal partner, it can become one of your competitive advantages.
At Treaty Oak, we:
- Translate legal volatility into business stability
- Build policies that actually work in real workplaces
- Train leadership to avoid accidental liability
- Help you structure your workforce for profit and compliance
- Step in early to keep disputes from becoming lawsuits
The new year doesn’t have to feel like you’re dodging legal grenades. You want clarity. Confidence. Competence. Let’s talk about making that your reality.
Because while the best time to get ahead of HR risk was last year, the second-best time is right now – before Q2 hits.
Ready to protect your margins? We’re here when you are.