I recently authored an article for Today’s General Counsel detailing options in-house attorneys might consider if their business does not have non-compete agreement in places but would like to develop one.
Continue Reading How to Develop a Non-Compete Implementation Strategy
[WEBINAR] Non-Compete Law Developments and Enforcement Trends for the Coming Year
In 2021, we saw the continuation of restrictions and limitations on non-compete laws at the federal and state levels. On July 9, President Biden signed an executive order advocating for the Federal Trade Commission’s (FTC) authority to prevent unfair non-compete practices in the workplace. Additionally, Colorado, Illinois, Nevada, Oregon and Washington, D.C. all modified or enacted new restrictions on non-competes, further indicating a broader legal trend toward limiting the power of employer form agreements and practices.
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Oregon, Nevada and Illinois Further Limit Restrictive Covenants
The legislatures of Oregon, Nevada and Illinois recently placed additional limitations on restrictive covenants, particularly non-competition covenants.
Changes to Oregon Restrictive Covenants
Effective as to agreements entered into on or after May 21, 2021, Oregon has further restricted non-compete agreements. Oregon previously limited non-compete agreements to a maximum of 18 months from the date of separation and to only those employees who do the following:
- Engage in administrative, executive or professional work.
- Perform predominately intellectual, managerial or creative tasks.
- Exercise discretion and independent judgment.
- Are paid a salary (or combination of salary and commissions) that exceeds the median income for a four-person family.
Continue Reading Oregon, Nevada and Illinois Further Limit Restrictive Covenants
Workforce Reduction Options Amid COVID-19
The economic repercussions of COVID-19 have been immediate and in many cases, debilitating, to American business across all industries, from food & beverage to manufacturing to healthcare. Challenges faced include government-mandated closures of certain “non-essential” businesses and reduced demand of products and/or services. As business revenue plummets, many companies are faced with the need to cut significant human capital costs in order to keep their business afloat. Below are some options for companies to consider as they work to address reduced staffing needs.
Furlough
While the term furlough is used to describe various arrangements, typically a furlough is an unpaid leave of absence. A furlough is often ideal for employers who anticipate a temporary need for reduced staffing. Employees on furlough are still technically employed by the employer and, as a result, may be able to remain on the employer’s group health plan(s) if permitted by the terms of the plan(s). Employers may require employees to pay the applicable employee portion of the premium during the furlough. If the employer’s group health plan(s) is not available to employees on furlough, COBRA coverage would commence. Also, many states allow for unemployment compensation to employees on an unpaid furlough.Continue Reading Workforce Reduction Options Amid COVID-19
EVENT: Labor and Employment Law Update – 2018 in Review and What’s to Come in 2019
Join us in Nashville on January 29 for a complimentary seminar reviewing 2018 employment law developments and looking forward to issues likely to be further addressed in 2019.
7:30 a.m. – 8:00 a.m. Registration and Breakfast
8:00 a.m. – 10:30 a.m. Program
This event will be held at our Nashville Bass, Berry & Sims office.
Topics will include:
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HR Personnel (and Employers) Beware: Antitrust Enforcers Warn of Criminal Liability for Compensation, No-Poaching Pacts
Human Resources (HR) personnel are now specifically under the scrutiny of the antitrust enforcement agencies. The Department of Justice (DOJ) and Federal Trade Commission (FTC) are typically known for enforcing antitrust laws against price-fixers and bid-riggers. Recently they announced a new set of targets: anti-competitive agreements between employers related to hiring and compensation. For the first time, these agencies have warned HR personnel and their employers they may be criminally prosecuted for agreeing with other companies to fix employee pay (wage-fixing agreements) or not to recruit each other’s employees (no-poaching agreements). Criminal violations of the antitrust laws are felonies and threaten substantial fines and jail time.
Continue Reading HR Personnel (and Employers) Beware: Antitrust Enforcers Warn of Criminal Liability for Compensation, No-Poaching Pacts
Non-Competition Agreements Under Fire: Who Should be Required to Sign?
Some employers require all, or most, of their employees to sign a non-competition agreement, rationalizing that even if not enforceable, at least the non-competition agreement will make the employee “think twice” before leaving, especially to a competitor. This practice has come under attack recently as anti-competitive.
Continue Reading Non-Competition Agreements Under Fire: Who Should be Required to Sign?
SEC Fines Public Companies for Attempting to Limit Whistleblower Incentives in Severance Agreements
The Securities and Exchange Commission (SEC) recently fined BlueLinx Holdings and Health Net, Inc. for including within severance agreements a provision designed to eliminate a former employee’s right to recover whistleblower incentives. In what is generally considered a standard provision in severance agreements, the companies’ agreements allowed for the former employees’ participation in any government investigation but required a waiver of the right to recover any incentive payments that the law provides for whistleblowers. The SEC issued substantial fines to these companies for this waiver requirement. The SEC explained that the whistleblower incentive is a key part of the SEC’s enforcement efforts and that any public company’s attempt to eliminate or limit that incentive violates the law.
Continue Reading SEC Fines Public Companies for Attempting to Limit Whistleblower Incentives in Severance Agreements
DEAR Department of Energy M&O Contractors: The FAR Nondisplacement of Qualified Workers Requirements Apply To You, Too
The Department of Energy (DOE) has proposed an amendment to the Department of Energy Acquisition Regulation (DEAR) that, among other changes, clarifies that FAR Subpart 22.12, Nondisplacement of Qualified Workers Under Service Contracts, and the associated Department of Labor regulations, applies to subcontracts under DOE’s management and operating (M&O) contracts. M&O contractors and their subcontractors
Arbitration Provision in Employee Handbook Not Enforceable
Employers should not rely on handbook provisions to create enforceable obligations on employees. The employers who do so took another loss recently. In Lorenzo v. Prime Commc’ns, LP, 2015 BL 386874, 4th Cir., No. 14-1622, 11/24/15, the federal Fourth Circuit Court of Appeals ruled that an arbitration provision, contained in an employee handbook, was not enforceable. The provision, said the Court, did not require an employee to take her wage and hour claims to arbitration. Rather, the employee was free to pursue those claims – including a collective action – in federal court.Continue Reading Arbitration Provision in Employee Handbook Not Enforceable