Emerging Trend: Curbing Non-Compete Agreements

Posted in Non-Compete & Trade Secret Litigation

Employers may find it increasingly difficult to protect customer relationships built on their dime as more states enact enhanced restrictions on non-compete agreements, or even bar them altogether. While employers may want to protect their investment by having employees sign agreements that restrict them from working for competitors or servicing the same customers once the employment relationship ends, such agreements are governed by state law and enforcing them is increasingly challenging. Employers seeking to use the same agreement for employees in multiple states face added challenges because of significant differences among state laws.

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Born Under a Bad Sign: Avoiding Electronic Signature Blues

Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation

When Albert King sang “Born Under a Bad Sign,” he was not referring to a document containing an invalid electronic signature. Nevertheless, in a post-COVID world with large numbers of remote workers, employers can take affirmative steps to minimize the kind of “bad luck” the blues singer referred to by understanding issues that may arise when using electronic signatures.

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A Reminder of Employer Obligations to Service Members

Posted in Employee Handbooks & Policies, Employment Discrimination Harassment & Retaliation, Employment Litigation

A recent U.S. Supreme Court decision serves as a reminder that employers must not overlook their obligations to reemploy returning service members and accommodate service-related disabilities.

The decision concerned whether a state could invoke sovereign immunity, a legal doctrine which prohibits a government from being sued without its consent, to avoid liability under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). In short, the Supreme Court said “No.”

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Profanity or Protected Speech?

Posted in Labor Relations

Imagine this, an employee writes profanity (“whore board”) on a company bulletin board, the employer terminates the employee for the profanity, and the National Labor Relations Board (“NLRB”) holds that the employee’s profanity is speech protected by the National Labor Relations Act (“Act”). That is exactly what happened to an aluminum products maker a few years ago. The NLRB held that the profanity constituted “protected concerted activity” under the Act, and the D.C. Circuit of the United States Court of Appeals (“Court”) recently upheld the NLRB’s decision. This decision highlights the expansive nature of protected concerted activity and why it is so important that employers tread carefully in this area.

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Employers: Be Careful What You Include In A Handbook

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention

Most employers include provisions in their Employee Handbook giving them the right to modify the policies at any time. They also make clear that the handbook is not a contract and does not create contractual obligations. There are good reasons for both, but also consequences. If you are looking to enforce an obligation, it’s best to put it in a contract, not a handbook. A recent federal appellate court decision brought home that lesson in the context of an arbitration agreement.

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Dealing with the Monkeypox Virus at Work

Posted in Employee Handbooks & Policies, Employment Discrimination Harassment & Retaliation, Employment Litigation, Workplace Safety & OSHA

Just as employers have figured out how to navigate the COVID-19 virus, the next one is poised to take hold – the monkeypox virus. Now declared a global and national public health emergency by the World Health Organization and the U.S., the monkeypox virus continues to spread with almost 10,000 cases in the U.S. and more than 30,000 globally (as of this posting). This new virus brings new considerations for employers.

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Watch that Frown: Mere Discouragement Enough to Violate the FMLA

Posted in Employment Counseling & Workplace Claims Prevention, Medical & Other Leaves

There has never been a better time for employers to train managers on the basics of Family and Medical Leave Act (FMLA) rights and appropriate responses to FMLA requests. Believe it or not, FMLA rights can be violated even if no FMLA leave is denied. That’s the law as affirmed by the Seventh Circuit’s recent decision in Ziccarelli v. Thomas J. Dart, et al. In that case, the plaintiff had worked in the Cook County Sheriff’s Office for 27 years, during which he periodically took FMLA leave. The plaintiff wanted to take more time off. A conversation with the office’s FMLA manager discouraged him from doing so, he claimed, and forced him to retire. The plaintiff filed suit, arguing, among other things, a violation of the FMLA’s anti-interference provision. Under that section, it is unlawful for an employer to “interfere with” the exercise of FMLA rights. The Court of Appeals concluded there was sufficient evidence to defeat summary judgment on the FMLA interference claim. The Court emphasized that “an employer can violate the FMLA by discouraging an employee from exercising rights under the FMLA without denying an FMLA leave request.” In other words, mere discouragement can constitute unlawful FMLA interference. Another court considered a supervisor’s body language (he was “visibly perturbed”) in denying summary judgment on an FMLA claim. Now more than ever, training managers on appropriate responses to FMLA leave requests is essential to prevent interference claims. Continue Reading

ALERT! Your COVID-19 Policies and Procedures Need a BOOSTER!

Posted in Employment Counseling & Workplace Claims Prevention, Genetic Information Nondiscrimination Act, Labor Relations

Employers who are conducting automatic COVID-19 testing of employees or gathering test results of employees’ families should beware: the Equal Employ­ment Opportunity Commission (“EEOC”) has issued new guidance limiting the former and has penalized a healthcare practice recently for doing the latter.

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Service and Support Animals: What Businesses Can and Cannot Do

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

We have all seen it. The unruly lap dog brought into a restaurant, yipping away, or the big dog running through a store dragging along its owner who, of course, claims it is a “service animal,” even though it clearly is not. Many individuals need and have legitimate service animals, while others need and have emotional support animals. But the two are not the same and are not accorded the same level of protection.

Abuse of the concept of service animals is widespread, so much so that U.S. Department of Transportation (DOT) adopted new more restrictive rules in December 2020 for traveling with them by air. Airlines are permitted to treat emotional therapy animals as pets, rather than service animals, and to require passengers with a disability traveling with a service animal to complete and submit to the airline a DOT form, in advance, attesting to the animal’s training, good behavior, and health, but businesses don’t have that option. Businesses faced with employees or customers seeking to pass off pets as service animals face a tough dilemma and need to know two things: what animals are protected, and what can they do when a customer and/or employee wants to bring an animal onto their premises?

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Employers: Prepare Now for Recession-Based Layoffs

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

With many economic experts predicting that the U.S. will enter a recession in the near future, employers are preparing for the possibility of significant layoffs. Before making cuts, companies – especially those with remote workers – should be aware of the potential pitfalls and legal ramifications of layoffs, and be prepared to adjust the timing and criteria for layoffs based on applicable federal, state, and local laws. Continue Reading