Legal Analysts

Showing posts with label employment. Show all posts
Showing posts with label employment. Show all posts

Tuesday, April 23, 2024

FTC Issues New Rule Banning Non-Compete Clauses - Retroactive Effect Raises Due Process Concerns

The Federal Trade Commission (FTC) has just issued a Non-Compete Clause Rule banning all Non-Competes. 

This Final Rule provides that it is an unfair method of competition for persons to, among other things, enter into non-compete clauses. While this Final Rule does not include a salary threshold, it does allow for non-competes when a business is sold, and also allows existing non-competes to be enforced for senior executives.

So, existing non-competes for workers, who are not senior executives, are no longer enforceable (retroactively undoing contracts). Is that a violation of due process / impermissible taking for employers? Are constitutional challenges next?  

Yet, the most interesting paragraph of the Final Rule reads:

Non-solicitation agreements are generally not non-compete clauses under the final rule because, while they restrict who a worker may contact after they leave their job, they do not by their terms or necessarily in their effect prevent a worker from seeking or accepting other work or starting a business. However, non-solicitation agreements can satisfy the definition of non-compete clause in § 910.1 where they function to prevent a worker from seeking or accepting other work or starting a business after their employment ends. Whether a non-solicitation agreement—or a no-hire agreement or a no-business agreement, both of which were referenced by commenters, as discussed previously—meets this threshold is a fact-specific inquiry. The Commission further notes that—like all the restrictive employment agreements described in this Part III.D—non-solicitation agreements, no-hire, and no-business agreements are subject to section 5’s prohibition of unfair methods of competition, irrespective of whether they are covered by the final rule. 

Moving forward, non-competes are mostly gone, but non-solicitation agreements, no-hire, and no-business agreements are clearly also on the chopping block where the utilization of each could easily result in protected litigation as to whether they are covered by the Final Rule or generally by section 5's prohibition of unfair methods of competition.

You can read the FTC's press release here.

You can read the Final Non-Compete Clause Rule here.  

Thursday, February 22, 2024

CLE - Proving and Calculating Front Pay and Back Pay in Employment Cases

Attorney Andrew Lieb is conducting a Continuing Legal Education course on Thursday, March 14, 2024 through the Connecticut Bar Association. 

Proving and Calculating Front Pay and Back Pay in Employment Cases (EDU240314)

About the Program

This course is designed to empower Connecticut Attorneys evaluating discrimination and whistleblower cases with the skills needed to calculate front and back pay. Attendees will delve into the intricacies of these calculations, exploring the underlying factors, and understanding the legal foundation established by case law and the rationale behind these formulas.

This course was created for both in-house and outside general counsel who need to provide an objective exposure analysis to their C-Suite counterparts when fielding discrimination claims. While this course is tailored for those with existing knowledge of the subject, it also serves as a valuable resource for referring attorneys to know what they have while undertaking an intake and giving initial advice to plaintiffs.

The course includes theory, math, and modeling with hypotheticals to walk participants through practical applications of the discussed concepts. To facilitate continued learning, participants will be provided with helpful links and reference materials, enabling them to further explore the subject matter beyond the course.

By the end of this CLE, Connecticut Attorneys will possess the skills and knowledge needed to confidently calculate front and back pay while having an invaluable resource for screening future employment law cases.

You Will Learn
  • About the impact of the different factors that contribute to the calculation of front pay and back pay
  • How to apply the different factors and how each impacts the calculations
  • Helpful skills and knowledge needed to defend settlements with your C-Suite Team

Wednesday, December 27, 2023

No More Non-Competes VETOED

On December 22, 2023 Governor Hochul vetoed Bill A01278. This bill would have fundamentally altered New York State's Labor Law by prohibiting non-compete agreements and additional restrictive covenants in labor and employment contracts.

This bill would have addressed the usage of non-compete agreements in employment contracts. It defined critical terms and highlighted that employers, their representatives, or officers of corporations could not solicit, demand, or accept a non-compete agreement from a covered individual. However, it didn't prohibit employers from entering into agreements that protected trade secrets, client information, or client solicitation. 

The justification behind this legislation was grounded in the adverse impact of non-compete agreements on New York's labor market and economy. These agreements purportedly curtailed workers’ mobility, limiting their ability to explore better employment opportunities and potentially stifling competitive wages and benefits.

The federal government has shown interest in a nationwide ban on non-compete agreements. New York could have lead the charge in fostering a more open and competitive labor market by codifying this ban into state law. 

Now, non-competes live on and companies hiring those with non-competes should be worried about tortious interference with a contract claims being levied against them. 

To learn more about Bill A01278, click here. 

Friday, October 09, 2020

OSHA Guidance on COVID-19 Reporting Requirements for Employers

On September 30, 2020, the Occupational safety and Health Administration (OSHA) published additional frequently asked questions and answers (FAQs) regarding an employer’s reporting requirements for in-patient hospitalizations and fatalities for employees who contracted COVID at work.

The new FAQs require employers to report in-patient hospitalizations and fatalities for work-related, confirmed, cases of COVID-19.

For in-patient hospitalization, the specific rules are:
  • Employers must report in-patient hospitalization within 24 hours of the work-related incident. A work-related incident means that the employee was exposed to COVID-19 in the workplace.
  • The 24-hour reporting period starts when the employer:
    • learns that an employee was in-patient hospitalized within 24 hours of a work-related incident; and
    • determines afterward that the cause of the in-patient hospitalization was a work-related case of COVID-19.
  • The above rules only apply to reporting but not to record keeping. Employers must still record work-related confirmed COVID-19 cases regardless of whether an employee was hospitalized.

For employees who died due to a work-related, confirmed, case of COVID-19, the specific rules are:

  • Employers must report them within 30 days of the work-related incident or the employee’s exposure to COVID-19 in the workplace.
  • The employer must report the fatality to OSHA within 8 hours of knowing or determining:
    • that the employee died within 30 days of exposure to COVID-19 in the workplace; AND
    • that the cause of the death was a work-related case of COVID-19.
  • Similar to in-patient hospitalization, the above limitations only apply to reporting and not to record-keeping.

Employers are advised to consult counsel to ensure compliance and to roll out a tailored record keeping and reporting procedures compliant with OSHA’s requirements.

Monday, August 10, 2020

Don’t Fire Your Employee for Taking Opioids so Fast – Lawsuit Alert

On August 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance explaining exposure to a discrimination lawsuit for employers who fire their staff for taking opioids.

To avoid being sued, employers must take the following steps upon discovering that an employee is taking opioids:

1. Determine if the opioid use is legal or illegal.
  • The ADA allows employers to terminate employees, or take other measures, based on the illegal use of opioids. However, legal or prescriptive opioid use cannot be a ground for automatic disqualification and employers must consider a way for the employee to do the job “safely and effectively” 
  • Employees who test positive to a drug test must also be given an opportunity to provide information about their legal drug use that may cause a drug result to show opioid use. The employer can ask the employee before the test is done if he/she is taking any such medication or the employer can ask all employees who test positive for an explanation. Such should be established by protocol and implemented consistently. 

2. Provide Reasonable Accommodations.
  • Employees who legally use opioids must be given a reasonable accommodation before getting fired or not considered for a position. This also applies to employees who have a history of opioid, or treatment for opioid addiction, which an employer thinks can interfere with safe and effective job performance.
  • Employees may also request a reasonable accommodation from taking prescription opioids to treat pain or from having other medical conditions related to opioid addiction as long as the condition is a disability under the ADA.
  • It is the employees’ responsibility to request a reasonable accommodation and employers cannot legally fire or refuse to hire or promote an employee for making the request. A request protocol should be established and applied consistently.
  • Employers must provide the reasonable accommodation if it does not involve significant difficulty or expense.

3. If an employee cannot do the job safely and effectively even after being provided with a reasonable accommodation, document objective evidence that the employee poses a significant risk of substantial harm. An employee cannot be removed for remote or speculative risks.

4. It is recommended that employers engage in an interactive process, as required in NYC, prior to making any final determinations. Failing to sue interact can be, in itself, the basis of exposure. To understand further, see our blog, 5 Step Process For Employers/Landlords to Protect Against Disability Discrimination Lawsuits for Failure to Accommodate.

You can access EEOC’s guidance HERE and HERE.

Friday, June 05, 2020

Are You Ready to Reopen Your Business? Here is Your 5-Step Plan

5-Step Plan to Reopen Your Long Island Business

We are reopening throughout Long Island!

Phase 2 is Wednesday - Are you ready to open your business?  

Reopening isn’t just going back to work – there are 5 steps that businesses must take to open their doors if they want to avoid legal troubles.

Step 1. Review the applicable guidance for reopening & affirm that you will comply.

Each industry has tailored guidelines from NYS DOH, which represents the minimum requirements for you to reopen.
Before you open your doors, you MUST affirm that you have read the guidelines at this link.
Guidance for your industry can be located here.

Step 2. Formulate a business safety plan.

Each business MUST develop a written safety plan to prevent the spread of COVID.

The plan must be retained on the premises of the businesses and made available for inspection by DOH or your local health and safety authorities (zoning) upon request.

The sample plan provided by NYS is 7 pages long and includes a daily mandatory health screening assessment for employees and essential visitors, a requirement to record a log of all those physically present at the premises, cleaning requirements, and much more.

Start writing your plan now in compliance with the law if you plan to reopen.

Step 3. Create logbooks to comply and maintain policies.

You need to create forms to implement your plan. You need the health screening assessment developed, a logbook for cleaning, and a logbook for visitors. These can be inspected by DOH and other authorities so they better exist before you open your doors.

Step 4. Floor markings and PPE.

You are required to provide your entire team with PPE so it’s time to start ordering supplies yesterday. Plus, you need to place signage and floor markings throughout your premises to maintain proper social distancing. So, take out your tape and measuring stick to get going.

Step 5. Craft your message.

Your team and your customers need to understand your plan and how it impacts them, or they won’t follow it. So, you need to create a message, start getting it out there via email and make it available to everyone at your business. This message must explain your safety plan and the new policies that you will enforce for the rest of COVID. Getting buy-in is the key to proper implementation and protecting you from suit and negative PR.

Here is a radio clip with our employment lawyer, Mordy Yankovich, discussing how to comply and protect your business when you are ready to reopen – have a listen - Real Estate Investing with Andrew Lieb 6/7/20 - Seg 3: Advice for Phase 2 Business Owners Reopening.

Tuesday, March 24, 2020

What Happens When You Ignore the Essential Services Executive Order

Beyond injuring others and being a terrible person, have you looked-up the exposure for violating Executive Order 202.8.

To remind you, 202.8 is what provides, in pertinent part, that "[e]ach employer shall reduce the in-person workforce at any work locations by 100% no later than March 22 at 8 p.m."

As to exposure for violating 202.8, it provides that "[a]ny business violating the above order shall be subject to enforcement as if this were a violation of an order pursuant to section 12 of the Public Health Law." Then, section 12 of the Public Health Law provides for "a civil penalty of not to exceed two thousand dollars for every such violation" for the first violation and a penalty "not to exceed five thousand dollars for a subsequent violation." However, if your violation "results in serious physical harm to any patient or patients, the penalty is "not to exceed ten thousand dollars."

So, if you infect someone, you are getting charged with a $10K penalty per violation.

Oh, by the way, the State can also get an injunction against your continued violations and potentially shut down your business, remote or otherwise, with that injunction.

Don't be crazy and ignore the order. Instead, if you believe you are essential, apply for a designation here.

Tuesday, October 15, 2019

New York State Overhauls Discrimination/Harassment Laws Opening the Floodgates to Future Claims

On August 12. 2019, Governor Andrew Cuomo signed legislation implementing extensive reforms to the New York State Human Rights Law, which dramatically increases protections for victims of discrimination and harassment in the workplace and makes it exceedingly more difficult for employers to defend against such claims.

Mordy Yankovich, Esq. shares an analysis of the major changes to the NYSHRL in The Suffolk Lawyer Law Journal here.

Monday, September 30, 2019

NYC: Using the Word "Alien" Could Result In $250,000 Fine

More discrimination lawsuits are on the horizon in NYC based upon the City's Commission of Human Rights new enforcement guidelines concerning immigration status and national origin.

Landlords, merchants, and employers now face up to $250,000 in fines for using terms and phrases like "illegal alien", "alien", and "speak english" when used in the context meant to demean, humiliate, or offend.

In their press release, the NYC Commission of Human Rights provided hypothetical examples of discriminatory behavior, including:
  • Harassing a restaurant patron because of their accent;
  • Refusing repairs on a unit occupied by an immigrant family and threatening to call ICE if they complain;
  • Paying a lower wage or withholding wages to workers because of their immigration status; and
  • Harassing a store customer by telling them to stop speaking their language and demanding they speak English.

*ATTENTION LANDLORDS AND EMPLOYERS* - your teams must be trained in the different forms of discrimination and harassment to avoid fines, lawsuits, and bad publicity.