The Federal Trade Commission (FTC) announced new proposed regulations today that, if adopted, will ban the use of noncompete agreements for most workers nationwide. The proposed Non-Compete Clause Rule will prohibit all employers – regardless of size – from imposing covenants not to compete on employees and independent contractors, with no carve-out available that would permit the use of noncompetes with executives or other highly-compensated workers. The rule is not yet in effect, and if enacted, it will not prohibit the continued use of properly drafted non-disclosure and non-solicitation clauses under federal law.
On December 29, 2022, President Biden signed into law two laws protecting pregnant and nursing mothers. The two laws were included as part of the bipartisan funding package passed by Congress in late December. The two laws are the Pregnant Workers Fairness Act (the PWFA), and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act. Together, the PWFA and the PUMP Act are rare bipartisan laws aimed at enhancing protections for pregnant and nursing mothers in the workplace.
The federal Equal Employment Opportunity Commission (EEOC) recently replaced its existing “Equal Employment Opportunity is the Law” poster with a new “Know Your Rights: Workplace Discrimination is Illegal” poster, which is available to download and print here.
Earlier this month, the U.S. Department of Labor (DOL) released a proposed rule to once again update the test to determine whether a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The proposed rule is intended to replace the 2021 independent contractor regulation. The new 2022 rule largely returns to the “economic realities” test. In publishing the proposed new rule, the DOL emphasized that courts have applied the economic realities test for several decades in interpreting the FLSA. If adopted, the rule could impact certain workers’ eligibility for overtime and minimum wage laws. As a result, employers may need to revisit their existing policies and practices to determine whether workers that they previously characterized as independent contractors should be reclassified as employees.
A series of recent criminal prosecutions stemming from workplace fatalities in connection with OSHA’s worker safety laws underscore the Justice Department’s willingness to charge OSH Act crimes, even in the absence of other Title 18 offenses or other criminal charges.
On August 10, 2022, major changes in Colorado law go into effect for restrictive employment covenants, i.e., covenants not to compete (non-competition covenants) and covenants not to solicit customers of an employee’s former employer (non-solicitation covenants). For many years, Colorado has limited non-competition covenants by statute, Colorado Revised Statutes §8-2-113, which prohibits non-competition covenants with specified exceptions, including when they are part of a contract for sale of a business. The most frequent and heavily litigated exception in the old law permitted an employer to require non-competition covenants for executive and management personnel, and for officers and employees who constitute professional staff to such personnel. Courts and parties frequently wrestled with the question whether an employee had been an “executive” or “management” personnel of the former employer.
On Friday June 24, 2022, the United States Supreme Court issued a decision that overrules Roe v. Wade. See Dobbs et al. v. Jackson Women’s Health Org. et al., Case No. 19-1392 (slip opinion). According to the decision, the federal constitution does not bestow the right to an abortion or protect an individual woman’s personal liberty interest concerning the same, but rather each state may fully regulate and outright ban or criminalize procedures as each state sees fit. As is discussed further below, this decision has important implications for employers that will now need to carefully review and potentially tailor their policies to accommodate individual states’ varying views on the legality and morality of abortion and individual liberty interests.
With a stated goal of increasing transparency and preventing workplace injuries and illness, employers across a wide spectrum of industries need to be aware of two separate recordkeeping and reporting efforts by OSHA. On April 5, 2022, the agency outlined a new enforcement initiative for employers failing to submit 300A annual electronic submissions as required under 29 CFR 1904.41. OSHA’s new enforcement priority comes on the heels of the agency’s March 28, 2022, proposed rule that would significantly alter the manner and methodology of workplace injury and illness reporting.
On February 10, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the “Act”) and sent the Act to President Biden for signature. President Biden is expected to sign the bill quickly this week, which will become law immediately upon signature by the President.
On January 25, 2022, the Occupational Safety and Health Administration (“OSHA”) announced that it was withdrawing the Vaccination and Testing Emergency Temporary Standard (the “ETS”). This withdrawal was made in light of the Supreme Court’s ruling on January 13th which stayed the implementation and enforcement of the ETS. We discussed the Supreme Court decision here. In its decision, the Court signaled that OSHA might be able to successfully promulgate industry-focused standards that include vaccination and testing components.