Employers Should Keep An Eye On the Non-Compete Reform Movement

Posted in Non-Compete & Trade Secret Litigation, Uncategorized

Employers who require all employees to sign a form non-competition agreement regardless of the state in which the employee is located or the type of work performed by the employee should think twice before doing so. Recent legislation focused on reform of non-competition agreements at the state level may signal a trend. In light of those changes and variations from state to state in enforceability, employers are well advised to conduct an individualized assessment to determine whether to require an employee to sign a non-compete agreement as a condition of initial or continued employment. Continue Reading

The New Salary Regulations: The Saga Continues

Posted in Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention, Uncategorized, Wage & Hour

While employers took solace from the Nov. 22 nationwide preliminary injunction which blocked implementation of a controversial rule increasing the salary threshold for employees to be exempt from overtime, the battle is not over. The Department of Labor filed its notice of appeal December 1, the same day the new salary regulations were to take effect. Continue Reading

Managing Employee Interactions in the Wake of the Trump Election

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

You may have been able to keep politics away from the annual Thanksgiving gathering of relatives with diverging viewpoints, but the workplace requires daily interaction. What’s an employer to do with emotions still running high from a divisive election?  Employers should be vigilant and insist that all employees act with professionalism and respect. Employers should ensure that each employee, regardless of political persuasion, feels that he or she is a valued team member and is treated accordingly. Continue Reading

Catch-22 for Franchisors: The Joint Employment Dilemma

Posted in Disability, Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention, Employment Litigation

As government agencies steadily expand the concept of  joint employment, franchisors increasingly find themselves in a difficult position. Since August 2015, when the NLRB ruled in Browning-Ferris that entities with the ability to exercise direct or indirect control over workers can be joint employers (prior blog post here), franchisors have experienced increased scrutiny from both federal agencies and the courts. Indeed, on the heels of the NLRB’s decision, the Department of Labor issued guidance concerning the FLSA which announced a similarly broad understanding of joint employment (prior blog post here). Moreover, in a recent amicus brief submitted in connection with litigation challenging the Browning-Ferris decision, the EEOC advised the D.C. Circuit Court of Appeals that the NLRB’s interpretation is consistent with the EEOC’s interpretation of joint employment with respect to Title VII.  Continue Reading

Employers Can Be Thankful: New Salary Regulation Delayed

Posted in Employee Benefits, Employment & Consulting Contracts, Wage & Hour

Providing employers with a piece of good news, a Texas court has issued a nationwide preliminary injunction that delays the December 1 implementation of the controversial final rule that increased the salary level for exempt employees to $47,476, more than double what it had been. The court found that the 21 states challenging the rule showed both that they were likely to succeed on the argument that the Department of Labor’s salary level under the rule and the automatic updating mechanism are without statutory authority, and that they would suffer irreparable harm. Conversely, the court said that the DOL failed to show harm if implementation were delayed until a final hearing.  Continue Reading

Employers Beware: SEC Continues Offensive on Employment Agreements That Inhibit Whistleblowers

Posted in Employment & Consulting Contracts

Risk Alert (literally)! Standard provisions in employment agreements, severance agreements and policies may run afoul of the SEC’s whistleblower regulations. In the wake of several highly publicized enforcement actions by the SEC, on October 24, 2016 the Office of Compliance Inspections and Examinations issued a “Risk Alert” highlighting various contract and policy provisions the SEC has found to run afoul of Rule 21F-17 of the SEC’s whistleblower regulations, and encouraging companies with registered securities to take steps to address potential violations now. Continue Reading

The Age of “Big Data”: How Your Electronic Applicant Searches May Be Complicating Your Talent Search

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

How do you hire only the “best” employees? How does any employer find the time to “vet” the hundreds or even thousands of job seekers applying for positions? A number of employers have turned to “big data” – the use of various algorithms to quickly analyze competing employees for coveted positions. These algorithms contain series of predictive data variables that are designed to allow HR departments and headhunters alike to more efficiently filter through the virtual avalanche of applications to find the best talent to fill the many jobs available in today’s economy. These programs also allow employers to filter through what otherwise would be endless talent searches by including—and excluding—resumes that include certain keywords submitted through their online application systems. However, as with most innovations in technology, this one carries its share of potential risks for employers. Continue Reading

Gig and Technology Sectors Targeted in EEOC Enforcement Plan

Posted in Employment Discrimination Harassment & Retaliation

The EEOC is targeting the “21st-century workplace” by focusing on gig economies and the technology sector in its new Strategic Enforcement Plan. The new Enforcement Plan also targets what the EEOC calls “complex employment relationships,” such as temporary workers, staffing agencies and independent contractors. Employers should closely evaluate issues surrounding these 21st-century workplace norms and identify how the EEOC’s new initiatives may impact them. Gig employers can expect to see policies and litigation from the EEOC expanding equal employment opportunity protections to gig workers, as it has done for LGBT workers. The typical concern with gig labor is whether the workers are employees or contractors, but the EEOC recognizes that this is a significant issue and is looking to protect these types of workers from discrimination. The agency may also bring more enforcement cases under the controversial joint employer theory in which partner entities (such as staffing agencies) and client employers are held liable for a labor violation committed by either one. Continue Reading

OSHA Clarifies Its “Just Say No” to Automatic Post-Accident Drug-Testing Position

Posted in Workplace Safety & OSHA

How do employers reconcile automatic drug-testing required by workers’ compensation laws with the provisions of OSHA’s new Rule saying that automatic testing could be retaliatory? Following our recent blog on that issue, many of our readers had questions. They were not alone; in fact, there was so much debate that OSHA issued a Memorandum on October 19, 2016 clarifying its position and affirmatively stating that it  will not issue citations under the new Electronic Recordkeeping Rule for drug testing conducted under a state workers’ compensation law or other state or federal laws or regulations. Continue Reading