NLRB Throws Its Hat Into the Non-Compete Provision Conversation

By Samuel S. Rose

On May 30, 2023, Jennifer Abruzzo, General Counsel at the National Labor Relations Board (NLRB), issued Memorandum GC 23-08 regarding Non-Compete Agreements. While the guidance memo is not law, it provides employers with context for the NLRB’s enforcement position and future policy decisions. This is the latest development on the issue of non-competes, with the FTC already considering a rule that would essentially prevent employers from entering into non-compete agreements with employees.

What Does the Memo Say? Continue reading

Pay Transparency Laws and New State Laws re: Non-Compete Agreements [Webinar Recording]

On Thursday, April 20, 2023, Daniel Deacon and Samuel Rose presented a webinar regarding Pay Transparency Laws and New State Laws re: Non-Compete Agreements.

Pay transparency laws have taken the country by storm. In December 2021, New York City Council passed a pay transparency measure that went into effect in November 2022. California passed a similar law that went into effect in January 2023. The trend will likely spread to other states across the country. This webinar explained the laws, compliance challenges, and some tips to make compliance easier. It also covered a general overview of new state laws regarding non-compete agreements, including the District of Columbia’s Ban on Non-Compete Agreements Amendment Act, which went into effect in October 2022.

Participants in the webinar learned: Continue reading

NLRB Issues Ruling Prohibiting Non-Disparagement and Confidentiality Provisions in Severance Agreements

By Megan S. Shaked

Over the last few years, we have seen states enact various restrictions on confidentiality and nondisparagement clauses in employment agreements. These changes were made in the wake of the #MeToo movement and in an effort to reduce perceived barriers to workers’ ability to raise claims for unlawful conduct in the workplace.

Last week, the National Labor Relations Board (NLRB) ruled that a severance agreement containing nondisparagement and confidentiality provisions is unlawful under the National Labor Relations Act (NLRA).

The main issue was whether the employer violated the NLRA by offering a severance agreement to 11 bargaining unit employees it permanently furloughed. The agreement broadly prohibited the employees from making statements that could disparage the employer. The agreement also prohibited the employees from disclosing the terms of the agreement.

In examining the language of the severance agreement at issue, the Board ultimately concluded that the nondisparagement and confidentiality provisions “interfere with, restrain, or coerce employees’ exercise of Section 7 rights.” The Board reasoned that because the agreement conditioned the receipt of severance benefits on the employee’s acceptance of the unlawful provisions, the respondent’s proffer of the agreement violated the NLRA.

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FTC Moves to Ban the Use of Noncompete Agreements by All Employers

By Kara M. Maciel and Samuel S. Rose

The Federal Trade Commission (FTC) has issued a Notice of Proposed Rulemaking for its proposed rule that would essentially prohibit employers from entering into noncompete agreements with any employee, independent contractors, interns, volunteers, and other types of workers. The FTC’s self-described mission is “protecting the public from deceptive or unfair business practices and from unfair methods of competition through law enforcement, advocacy, research, and education.” This proposed rule is the latest example of the FTC, under the direction of Chair Lina Khan, attempting to control corporate power and influence. Since Khan took over control of the agency in June 2021, the FTC has challenged the Microsoft-Activision merger, worked with the Justice Department to force Epic Games Inc., developer of the popular video game Fortnite, to agree to massive privacy law violation penalties, and filed a lawsuit to block Meta from buying a virtual reality start-up.

Generally, noncompete agreements prevent an employee from joining a competitor or starting a competitive business for a specified period of time. Often, noncompete agreements are limited to a geographic area.  Many states regulate noncompete agreements in a variety of ways, including through income levels and notice requirements, but this new federal rule would supersede any state or local law that expressly allows for such restrictions.

The FTC estimates that approximately 30 million people are bound by noncompete agreements. Continue reading

Announcing Conn Maciel Carey LLP’s 2023 Labor and Employment Webinar Series

Announcing Conn Maciel Carey LLP’s

2023 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As we enter Year 3 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.  

Conn Maciel Carey’s complimentary 2023 Labor and Employment Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by attorneys in the firm’s national Labor and Employment Practice, will focus on a host of the most challenging and timely issues facing employers, examine past trends and look ahead at the issues most likely to arise.

To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2023 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past eight years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars.

California Employment Law Update

Thursday, January 19, 2023

Remote Work Challenges

Wednesday, February 22, 2023

Whistleblower/Retaliation Issues

Tuesday, March 21, 2023

Pay Transparency & Non-Compete Laws

Wednesday, April 20, 2023

Managing Internal Investigations

Thursday, May 11, 2023

Hot Topics in Wage and Hour Law

Tuesday, June 20, 2023

Marijuana and Drug Testing

Tuesday, July 18, 2023

Privacy Issues in the Workplace

Wednesday, September 20, 2023

ADA Reasonable Accommodations

Wednesday, October 18, 2023

Artificial Intelligence in the Workplace

Tuesday, November 21, 2023

NLRB Issues and Joint Employer Update

Thursday, December 14, 2023

See below for the full schedule with program descriptions, dates, times and links to register for each webinar event.


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DC Walks Back Certain Aspects of its Pending Ban on Non-Compete Agreements

DC employers may be aware of the District of Columbia’s impending ban on non-compete agreements, which originally was scheduled to become effective on October 1, 2021 and which was set to become one of the most explicit bans on non-compete agreements in the nation.

"upset,At,You,For,Breaching,The,Non-compete?,Of,Course,Not."The initial iteration of the law, titled the “District of Columbia Ban on Non-Compete Agreements Amendment Act of 2020 (the “Act”), prohibited employers from requiring employees who perform work in Washington D.C. (or a prospective employee whom the employer reasonably anticipated would perform work in Washington, DC), from signing any agreement that included a non-compete provision.  The Act also made it unlawful for employers to have any workplace policy prohibiting employees from (i) being employed by another person; (ii) performing work or providing services for pay for another person; or (iii) operating their own business.  In other words, the Act rendered virtually all non-compete provisions unenforceable and forbade employers from instituting workplace policies, such as anti-moonlighting rules, that limit employees’ ability to work for other people or start their own business.

However, along with the effective date of the Act being delayed several times (first to April 1, 2022 and now to October 1, 2022), the D.C. Council recently passed the Non-Compete Clarification Amendment Act of 2022 (the “Clarification Amendment Act”), which tempers certain aspects of the law.

First, the Clarification Amendment Act explains that Continue reading

Conn Maciel Carey’s 2022 Labor and Employment Webinar Series

2022 LE Webinar Series

Announcing Conn Maciel Carey’s 2022 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As we enter Year 2 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.

​Conn Maciel Carey’s complimentary 2022 Labor and Employment Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by attorneys in the firm’s national Labor and Employment Practice, will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.

To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2022 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past seven years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars. 

2022 Labor and Employment Webinar Series – Program Schedule

Continue reading

[Webinar] Avoiding Common Pitfalls of Company Trade Secret and Non-Compete/Non-Solicit Agreements

On Wednesday, November 17, 2021 at 1:00 p.m. ET, join Jordan B. Schwartz and Megan S. Shaked for a webinar regarding Common Pitfalls of Company Trade Secret and Non-Compete/Non-Solicit Agreements.

Employment agreements and settlement agreements can be an effective way to address employer concerns regarding unfair competition and trade secret protections. Equally important is avoiding the pitfalls of non-compliant provisions. This webinar will review the scope of permissible provisions relating to non-compete and other restrictive covenants, state law efforts to push back on overly broad and restrictive agreements, and best practices for avoiding potential employment claims.

Participants in this webinar will learn: Continue reading

Announcing Conn Maciel Carey’s 2021 Labor and Employment Webinar Series

2021 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As President Trump’s Administration comes to an end, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.  This complimentary webinar series will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.

Conn Maciel Carey’s complimentary 2021 Labor and Employment Webinar Series, which includes (at least) monthly programs put on by attorneys in the firm’s national Labor and Employment Practice, is designed to give employers insight into legal labor and employment developments.

​To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you. If you missed any of our past programs from our annual Labor and Employment Webinar Series, click here to subscribe to our YouTube channel to access those webinars.


2021 Labor & Employment Webinar Series – Program Schedule

California Employment Law Update for 2021

Wednesday, January 20th

Marijuana, Drug Testing and Background Checks

Tuesday, July 13th

COVID-19 Vaccine: What Employers Need to Know

Thursday, February 11th

Employee Misconduct Defense & Employment Law

Wednesday, August 11th

Employment Law Update in D.C, MD, VA and Illinois

Wednesday, March 24th

Employee Handbooks, Training and Internal Audits

Tuesday, September 21st

Withdrawal Liability Pensions

Wednesday, April 14th

NLRB Update

Tuesday, October 19th

ADA Website Compliance Issues –  Best Strategies for Employers

Tuesday, May 18th

Avoiding Common Pitfalls: Non-Compete, Trade Secrets and More!

Wednesday, November 10th

What to Expect from DOL Under the Biden Admin.

Wednesday, June 16th

Recap of Year One of the Biden Administration

Tuesday, December 14th

   

See below for the full schedule with program descriptions, dates, times and links to register for each webinar event.

Continue reading

Time’s Up:  Illinois Employers Are On The Clock To Provide Sexual Harassment Training

Late last year, we summarized the many new employment laws with which Illinois employers would have to comply in 2020, including the requirement to provide sexual harassment training by the end of the year.  Now that 2020 is not so new anymore, employers should begin preparations to comply, so they are not left scrambling later this year.  This article will summarize the key points you need to know to stay compliant.

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  • Does this law apply to me—what is the threshold for coverage?

One and done—in other words, if you have at least one employee, the law applies to your company and you must train that employee… presumably in a one-on-one session.

  • What must we cover in the training session(s)?

Presently, we know that employer-provided training must cover, at a minimum, the following topics:

  1. an explanation of sexual harassment consistent with the Illinois Human Rights Act (IHRA);
  2. examples of conduct that constitutes unlawful sexual harassment;
  3. a summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
  4. a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.
  • Who must be trained and when?

The law went into effect on January 1, 2020, but employers have until the end of the year—December 31, 2020—to provide the required training to both employees and managers.  There is no exception Continue reading