Author Archives: admin

November 10, 2021

The Disappearing Future of Non-Compete Agreements

By Jeremy Ben Merkelson, Tyson Horrocks, S. Jordan Walsh, Shaun Kennedy, and Brit (Brittany) Merrill

ERE Recruiting Intelligence

Republished with permission ERE Media, Inc. Originally appeared in the November 10, 2021 online edition of ERE.net

For the last two decades, with the principal exception of California and a handful of other jurisdictions, non-competition covenants have been a standard component of the defense architecture for U.S. companies to protect valuable confidential information and trade secrets from falling into the hands of a competitor. Over time, though, this tool has been dramatically curtailed.

Hostility to non-competition agreements is growing. In July, President Biden deputized the Federal Trade Commission (FTC) to explore nationwide restrictions on their use. Additionally, in the last five years, state-law restrictions on entering into non-competition agreements with low-wage earners have been adopted in Illinois, Maine, Maryland, New Hampshire, New York, Rhode Island, Virginia, and Washington (and the District of Columbia will see new restrictions take effect in April 2022). Read more >>

November 5, 2021

New OSHA and CMS COVID-19 Vaccination & Testing Mandates: What Employers Need to Know

By Mickell Jimenez, Robert Ayers, Tyson Horrocks, Kody Condos, and Curtis Greenwood

Today, the Department of Occupational Safety and Health Administration (OSHA) issued its Covid-19 Vaccination and Testing Emergency Temporary Standard (ETS) and the Centers for Medicare & Medicaid Services (CMS) issued its Interim Final Rule (the “Interim Rule”), nearly two months after President Biden issued two executive orders in conjunction with the Path out of the Pandemic, President Biden’s COVID-19 Action Plan (collectively, the President’s Action Plan”), providing new COVID-19 vaccination requirements. While there is some overlap between the standards, we will address the ETS and Interim Rule separately. We recommend that you contact your employment and healthcare attorneys for additional guidance. Read more >>

November 5, 2021

NLRB Landscape Shifting (Again) for Nonsolicitation, Other Workplace Policies

by Steven Gutierrez

Steven Gutierrez

It should come as no surprise that President Joe Biden’s appointment of Jennifer Abruzzo as General Counsel (GC) of the National Labor Relations Board (NLRB) would effectively shift the NLRB to a prounion majority. Ever since the new Board took control, we’ve advised employers to brace for widespread rollbacks of gains they saw in the traditional labor area under the Trump administration (see “Changing of the guard: NLRB precedent under Biden administration”). In that regard, Abruzzo expressly warned employers she intends to return to the prounion agenda seen during the Obama years.

NLRB analysis of employer handbooks

One of the more controversial shifts by President Barack Obama’s NLRB was its attack on employers’ facially neutral workplace rules. For example, in Chipotle Services LLC, the Board used its 2004 precedent in Lutheran Heritage to invalidate employer rules directing employees to delete social media posts about their wages or other terms or conditions of employment. Read more >>

November 3, 2021

Making Room for Vaccinated, Unvaccinated Employees Under Same Roof

by Steven Gutierrez

Steve Gutierrez

Question: We aren’t sure we want to permit someone who isn’t vaccinated to work closely with us and are particularly concerned because the unvaccinated employee is sitting next to an enclosed area with a fully vaccinated individual who has an immunocompromised infant. How do we protect the vaccinated employee and her infant when we cannot say who is/is not vaccinated because of the Health Insurance Portability and Accountability Act (HIPAA)?

Answer: These are good questions to ask and should be part of the interactive process with the unvaccinated employee to see if there’s a reasonable accommodation that doesn’t pose an undue hardship. Additionally, under the present circumstances, the unvaccinated employee may be considered a “direct threat” that cannot be eliminated or reduced by reasonable accommodation. Read more >>

November 2, 2021

Federal Contractors Offered Some Flexibility to Implement COVID-19 Vaccine Mandate

by Shaun C. Kennedy and Ryan K. Lundquist

Shaun Kennedy

The implementation of President Biden’s Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO”) continues to evolve and will likely be refined and updated over the coming weeks and months. In a prior alert, we covered guidance issued by the Safer Federal Workforce Task Force’s (the “Task Force”) on September 24, 2021 detailing requirements for implementation of the EO.

On November 1, 2021, the Task Force released additional FAQs to clarify its prior guidance. We highlight below some of the key takeaways from the recently released FAQs:

Ryan Lundquist

1. Is a 100% vaccination rate required by December 8, 2021?

In what will likely be welcome relief, the FAQs introduced a certain degree of flexibility for covered contractors to comply with the EO’s vaccination requirements.

The FAQs instructed agencies to assess the degree to which a covered contractor is taking good faith steps to comply with the EO. When a covered contractor is working in good faith toward enforcing compliance with the EO and workplace safety protocols, the agency “should work with them to address the challenges.” However, where the agency determines a contractor is not “taking steps” to comply, the contracting officer should take “significant actions, such as termination of the contract.” Read more >>

September 10, 2021

Vaccine Mandates Q&A

By Mickell Jimenez, Tyson Horrocks, and other Co-Authors

On September 9, 2021, President Biden issued two executive orders in conjunction with the Path out of the Pandemic, President Biden’s COVID-19 Action Plan (collectively, the “President’s Action Plan”), providing new COVID-19 vaccination requirements, which may affect you and your business. Since the President’s announcement, we have received numerous questions from employers across the spectrum. This article unpacks the White House’s latest efforts as employers continue to navigate the ever-changing COVID and vaccination landscape. Read more >>

September 7, 2021

Employers Consider Raising Premiums for Unvaccinated Workers

by Beth Nedrow

Beth Nedrow

Employers are impacted in many ways by the COVID-19 pandemic, not the least of which are employee health and safety. For the last several months, employers have used mostly soft-sell approaches to encourage their employees to get vaccinated. With the FDA’s approval, employers are showing a willingness to move beyond incentives like gift cards. One of the more notable examples in the headlines lately is Delta Airlines’ decision to implement a premium surcharge on unvaccinated workers. Employees who don’t get the jab will have to pay more in premiums under the Airlines’ medical plan. Read more >>

September 2, 2021

26 Holland & Hart Lawyers Recognized by 2022 Best Lawyers in America and Best Lawyers: Ones to Watch

The Labor & Employment team at Holland & Hart LLP is proud to announce that three of the group’s lawyers were named 2022 Best Lawyers® “Lawyer of the Year”:

Bryan Benard named the Best Lawyers 2022 Labor Law – Management “Lawyer of the Year” in Salt Lake City
Brian Mumaugh named the Best Lawyers 2022 Labor Law – Management “Lawyer of the Year” in Denver
Dean Bennett named the Best Lawyers 2022 Employment Law – Management “Lawyer of the Year” in Boise

August 4, 2021

Denver’s New Vaccine Mandate For Some Private-Sector Employers: Are you prepared?

by Laurie Rogers

Laurie Rogers

Colorado employers already grappling with mandatory paid sick leave and complex job posting requirements may now be obligated to implement mandatory vaccination policies for their employees.

On Monday, August 2, 2021, Denver Mayor Michael Hancock announced a mandatory vaccination requirement for the City’s 10,000-plus workers and certain private-sector workers in high-risk settings. Denver is the first major U.S. city to mandate COVID-19 vaccinations for private-sector employees. The City’s Department of Public Health & Environment (“DDPHE”) claims that, as the accredited public health agency for the City and County of Denver, it has the authority to mandate vaccinations to protect the public from immediate and imminent risk to its health and safety. See City of Denver FAQs.

July 29, 2021

You Likely Don’t Have to Reimburse Remote Workers for Furniture Expenses

By Mark Wiletsky

Mark Wiletsky

Question: For employees working from home, we currently don’t provide reimbursement for furniture without a doctor’s note stating a need for an ergonomic chair or desk. If we require someone to work from home more than half the time, do we have to purchase an ergonomic chair other than for Americans with Disabilities Act (ADA) purposes?

Answer: Probably not. You’re correct that the provision of specialized equipment (including, potentially, an ergonomic chair or special desk) can be considered a reasonable accommodation under the ADA, but you likely have no obligation to provide such equipment to employees unless they are disabled within the meaning of the Act and you determine through the interactive process the equipment requested may reasonably accommodate their disabilities by allowing them to
perform the essential job functions.