Author Archives: admin

July 31, 2024

Second Decision on FTC’s Noncompete Ban Is In

Annie Stuller

On July 23, 2024, a federal judge from the Eastern District of Pennsylvania declined to issue a preliminary injunction that would block the Federal Trade Commission’s (“FTC”) rule banning most noncompete agreements, current and future, that is set to take effect on September 4 (“Rule”).

In reaching this decision, the judge concluded that the plaintiff failed to demonstrate a substantial likelihood of success on the merits. First, the judge rejected the plaintiff’s argument that Section 6(g) of the Federal Trade Commission Act (“FTC Act” or “Act”) only authorizes procedural rulemaking, explaining it “is inherently inconsistent and therefore untenable” to read the word “procedural” but not “substantive” into the FTC Act when neither word appears within the Act. She explained, “it [is] clear that the FTC is empowered to make both procedural and substantive rules as is necessary to prevent unfair methods of competition.” Second, unpersuaded by the plaintiff’s supporting reasons, the judge rejected the plaintiff’s alternative argument that—even if the FTC Act empowers the FTC with authority to make substantive rules—the FTC exceeded its authority by banning all noncompete agreements. Read more >>

July 10, 2024

FTC’s Noncompete Ban On Hold…For Parties Involved in Lawsuit

Mark Wiletsky

By Mark Wiletsky and Annie Stuller

On July 3, 2024, a federal judge from the Northern District of Texas barred the Federal Trade Commission (“FTC”) from enforcing its Rule banning noncompete agreements and paused the Rule’s effective date of September 4, 2024. However, the judge limited the scope of her preliminary order to the plaintiff (Ryan LLC) and plaintiff-intervenors (the U.S. Chamber of Commerce and other business associations), declining to pause the Rule nationwide. As a result, for all other employers, this Rule is still set to take effect on September 4, absent further action by this court or another court in which a challenge to the Rule is pending.

Annie Stuller

The challenged Rule broadly bars employers from entering noncompete agreements with employees, invalidates existing agreements except for highly compensated individuals in a policymaking position, and requires employers to provide notice to current and former employees bound by existing agreements that the agreement will not be enforceable once the Rule takes effect.

In siding with the plaintiff and plaintiff-intervenors, the judge reasoned that the FTC lacked statutory authority under Section 6(g) of the Federal Trade Commission Act (“FTC Act”) because it is a “housekeeping statute” that only authorizes procedural—not substantive—rulemaking. She reached this conclusion by looking to “the text, structure, and history of the FTC Act.” The judge further concluded that the Rule violates the Administrative Procedure Act’s prohibition against arbitrary and capricious rules “because it is unreasonably overbroad without a reasonable explanation.” Employers should keep in mind that these conclusions were based on a “substantial likelihood” of success on the merits, signaling the judge will likely (but not certainly) rule in favor of the plaintiff and plaintiff-intervenors. Read more >>

June 28, 2024

IRS Issues Final Prevailing Wage and Apprenticeship Regulations

By Adam Cohen, Colin J.A. Oldberg, and Melissa Braun

On June 25, 2024, the Internal Revenue Service and U.S. Department of Treasury published final Treasury Regulations (“Final Regulations”) in the Federal Register on the prevailing wage and registered apprenticeship requirements (“PW&A Requirements”) under Sections 30C, 45, 45L, 45Q, 45U, 45V, 45Y, 45Z, 48C, and 179D of the Internal Revenue Code of 1986 (the “Code”). The PW&A Requirements provide rules for taxpayers intending to claim increased amounts of Federal income tax credits or an increased deduction as well as certain recordkeeping and reporting requirements and are comprised of prevailing wage requirements (“Prevailing Wage Requirements”) and apprenticeship requirements (“Apprenticeship Requirements”).

Adam Cohen

Colin J.A. Oldberg

Melissa Braun

June 18, 2024

A Tale Of Two Rulings: This Week’s Conflicting Decisions On The Pregnant Worker’s Fairness Act

by Kody Condos and Leslie Perkins

Today, June 18, 2024, marks the effective date of the Pregnant Worker’s Fairness Act (“PWFA”) Final Rule, which is now effective in 48 states. The path to implementing the PWFA has been fraught with lawsuits, culminating in this week’s starkly opposing court decisions.

Leslie Perkins

Kody Condos

First, U.S. District Judge D. P. Marshall Jr. (Arkansas) dismissed a motion for preliminary injunction filed in April by attorneys general from 18 states against the Equal Employment Opportunity Commission challenging the provisions of the PWFA related to employers being required to provide reasonable accommodations for employees seeking elective abortions. Judge Marshall held the attorneys general lacked standing to sue and that the states could not show a likelihood of irreparable harm, an element required for a preliminary injunction to be successful. Because of the lack of standing and failure to meet a required element of a preliminary injunction, the Court denied the preliminary injunction as moot and ordered dismissal of the Complaint without prejudice. Read more >>

June 18, 2024

Looming Deadline For California Employers To Implement A Workplace Violence Prevention Program

By Robert Ayers and Erik Adams

Starting July 1, 2024, California will begin requiring employers to implement a workplace violence prevention program.

What are the New Requirements?

Erik Adams

Robert Ayers

California already requires nearly all employers to implement an Injury & Illness Prevention Plan (“IIPP”) that promotes “safe and healthy work practices.” The new mandate compels California businesses to also create a “workplace violence program” addressing “any act of violence or threat of violence that occurs in a place of employment… that results in, or has a high likelihood of resulting in, injury, psychological trauma or stress.” Employers must adhere to certain recording, recordkeeping, and training requirements related to their workplace violence prevention plan. The plan need not address remote workers, as long as they are “working from a location of the employee’s choice” that “is not under the control of the employer.” Read more >>

June 4, 2024

The Pregnant Workers Fairness Act aka the EEOC’s New Baby

Kody Condos

by Kody Condos and JT Washington

The Pregnant Workers Fairness Act (PWFA), the newest member of the family of federal anti-discrimination laws, is almost one year old! Instead of inviting employers over for cake and photo ops, after one year of accepting charges of discrimination under the law, the U.S. Equal Employment Opportunity Commission’s (EEOC) has gifted employers with its interpretive guidelines instead. If you do not know them already, keep reading. The PWFA differs from other anti-discrimination laws in some very important ways that employers will want, and need to understand.

JT Washington

The PWFA went into effect on June 27, 2023. The EEOC’s regulations governing the PWFA go into effect on June 18, 2024. Like the Americans with Disability Act (ADA), the PWFA requires covered employers to provide qualifying employees and applicants accommodations to perform their work duties safely and without discrimination or retaliation.

This post covers key provisions of the PWFA and the EEOC’s regulations governing the law. Read more >>

April 26, 2024

Supreme Court Lowers Bar for Adverse Actions

Mark Wiletsky

by Mark Wiletsky

Can an employee sue under Title VII to challenge a lateral transfer, even if the transfer does not result in a loss of pay? According to a recent U.S. Supreme Court decision, the answer is: Yes. Employers transfer employees, or take other actions, for a variety of reasons. Until recently, so long as those decisions did not significantly or materially impact the employee’s terms and conditions of employment, the employee did not have a viable discrimination claim. That standard is no longer the law of the land. Now, if there was “some harm” as a result of a transfer or other action, and the action was based on an employee’s protected characteristic, the employee can assert a discrimination claim.

Factual Background. From 2008 through 2017, Sergeant Jatonya Clayborn Muldrow worked in a coveted position in the specialized Intelligence Division of the St. Louis Police Department. In 2017, her new commander sought to replace her with a male officer. The new commander did not fire her; instead, he transferred Muldrow to a uniformed role in another department. Although her rank and pay remained unaltered, the responsibilities, privileges, and schedule of her new position significantly differed from her previous role. In Muldrow’s original role, she worked in a “premier position” with high-ranking officials on department priorities in the Intelligence Division. Her new role, she claimed, was less prestigious or focused more on administrative tasks. Muldrow supervised day-to-day activities of neighborhood patrol officers, including approving their arrests, reviewing their reports, and handling other administrative matters; she even did some patrol work herself. As a result of the transfer, Muldrow lost her FBI status and the car that came with it, and she went from a regular Monday through Friday schedule to working a “rotating schedule,” including weekend shifts. Read more >>

April 24, 2024

FTC Bans Noncompetes

Little V. West

By Little V. West

The Federal Trade Commission (FTC) has issued a new rule broadly banning noncompete agreements, marking a sea change in their regulation, which previously has been primarily governed by state law. Once effective, existing noncompete agreements will generally become unenforceable, except for certain highly compensated senior executives. Future noncompete agreements will not be allowed. (See § 910.2). An exception to the rule may apply if the restricted party is selling a business entity, its ownership interests, or operating assets as part of a bona-fide sale. (See § 910.3 (a)). The rule is expected to take effect 120 days after its publication in the Federal Register. Read more >>

April 23, 2024

10th Circuit Scrutinizes DEI Training Program

Brad Cave

by Brad Cave

Can an employer’s diversity, equity, and inclusion (DEI) program create liability for the discriminatory harassment of white employees? The U.S. 10th Circuit Court of Appeals (whose rulings apply to employers in Wyoming, Colorado, New Mexico, and Utah) recently warned that the training required by a Colorado state agency included some content that could constitute unwelcome race-based harassment. While the court ultimately rejected the employee’s harassment claim, the opinion serves as a good reminder that negative race-based messaging may be illegal no matter which race is the target.

White employee gets the blues over DEI training

Joshua Young worked for the Colorado Department of Corrections (CDOC). Department policy required all employees to complete mandatory DEI training, which included several online modules and incorporated a glossary of terms explaining various DEI themes and several additional videos and books about race.

Young objected to many of the messages in the training. His lawsuit alleged the training included “sweeping negative generalizations” about white people and painted the United States as a racist country. According to him, the training glossary said all white people are racist, and white people created the concept of race to justify the oppression of people of color. The glossary also explained that white people are triggered by feelings of guilt and fear when confronted with racial inequality and injustice, which amounted to “white fragility.” Read more >>

February 7, 2024

February 2024 Visa Bulletin: Insights into Employer-Based Immigrant Petitions and Visa Backlogs

Samantha Wolfe

By Sarah Bileti and Samantha Wolfe

As we delve into the February 2024 Visa Bulletin, it’s evident that the priority dates for employer-based immigrant petitions continue to face minimal advancement, contributing to prolonged wait times for immigrant visas throughout fiscal year 2024. Let’s examine the key highlights and implications of this latest update.

Key Highlights:

Limited Movement in EB-2 and EB-3 Categories: USCIS and the State Department have reported minimal progress in the EB-2 and EB-3 categories for various regions, with exceptions for India and China.
Use of Dates for Filing Chart: USCIS continues to utilize the Dates for Filing chart to determine eligibility for I-485 filings, reflecting priority dates expected to become current during the fiscal year.
Impact on India and China: The final action dates for China and India across all employment-based categories, except for the Other Workers category for India, show no significant advancement.
Continued EB-1 Category Retrogression: Despite hopes for advancement, the EB-1 category, particularly for China and India, has experienced little to no movement, impacting individuals seeking shorter green card wait times.