Tag: work

Down to the Wire for Employers and FTC Noncompete Ban

Compliance Deadline Approaches

Employers are running out of time to comply with the FTC’s purported regulatory ban on non-competition agreements. The ban – announced on April 23, 2024 – is scheduled to take effect on September 4. 2024.

By that date, the regulation requires that employers notify all employees subject to noncompetes that the agreements will no longer be enforced. The only exceptions are existing agreements with “senior executives” who made at least $151,164 in the preceding year; these agreements are grandfathered. See our earlier alerts from April 23, May 14, and July 8 for further discussion on developments relating to the ban.

So Far, No Nationwide Injunction Against FTC’s Ban

As previously reported, a federal court in Dallas issued a preliminary injunction against the regulation on July 3, 2024. The injunction, however, only affects the parties to the lawsuit and the district in which the lawsuit was brought. When she issued that preliminary injunction, Judge Ada Brown committed to rendering a final decision on the plaintiffs’ request for a permanent injunction by August 30,2024.

However, she specifically declined to give her preliminary injunction nationwide effect. In its motion in support of a permanent injunction, the U.S. Chamber of Commerce and other parties are arguing that the court is required to vacate the rule, with nationwide effect, because it was adopted in violation of the Administrative Procedure Act. We cannot predict whether she will do so.

Meanwhile, since the July ruling in Texas, two other federal courts have issued rulings on requests to enjoin the ban, one in Philadelphia in favor of the FTC by denying an injunction, and the other in central Florida in favor of the employer by granting one. As with the Texas case, the Florida injunction is not nationwide. Moreover, that judge has not yet issued an opinion, so we do not yet know his rationale for the injunction.

Now What?

Where does this leave employers? In the absence of a ruling invalidating the FTC ban nationwide, there is nothing to prevent the FTC from enforcing its ban beginning September 4 anywhere outside of Dallas and mid-Florida. As far as we know, only the Northern District of Texas is able to order such a ban when it issues its final decision on or before August 30.

Even though, based on her initial ruling, it is quite likely Judge Brown will enjoin the regulation permanently, it is unclear whether she will take the additional step of giving her injunction nationwide effect.

To comply with the regulation, employers should prepare to act by September 4. We recommend creating a list of all current and former “workers” (defined as any service providers regardless of classification) subject to noncompete agreements and a written communication that meets the regulation’s notice requirements.

Unless a new order appears enjoining enforcement of the ban nationwide before September 4, employers will need to send out that communication in order to be in compliance. The requirements for sending the notice include identifying the “person who entered into the noncompete clause with the worker by name” (we don’t know if this means the individual or the entity) and hand delivering or mailing the notice to the worker’s last known mailing address, or to the last known email address or mobile phone number (by text). The full text of the rule, including a model communication from the FTC, can be found at pages 3850-06 of the May 7, 2024, Federal Register.

©2024 Pierce Atwood LLP. All rights reserved.
For more on the Noncompete Ban, visit the NLR Antitrust Trade Regulation section.

How to Unplug From Work During the Holidays

It can be challenging to fully unplug from work during the holidays, especially if you have a lot of responsibilities or if you run your own business.

But taking a break from work during this slower period can be beneficial for your mental health and overall well-being.

It’s really important to not feel guilty about taking some time off or deciding that you don’t necessarily want to take time off, maybe want to spend time building your brand and business and if you do, I have plenty of tips for that as well!

Here are a few tips for unplugging from work during the holidays:

  • Set boundaries: Let your coworkers and clients know that you will be unavailable during specific times, such as during the holidays or on a certain day of the week. This will help prevent you from feeling pressure to respond to work-related messages or calls while you are trying to relax.
  • Create a relaxing routine: Plan activities that will help you relax and unwind, such as exercising, reading or spending time with family and friends. Having a relaxing routine can help you disconnect from work and focus on self-care.
  • Avoid checking work emails or messages too often. Try to resist the temptation to check work emails or messages all the time while you are on vacation. If you must check your email, set a specific time each day to do so and limit the amount of time you spend on it.
  • Take breaks from work-related tasks: If you are working on a project or task during the holidays, take regular breaks to rest and recharge. This will help you avoid burnout and maintain a healthy work-life balance.
  • Plan in advance: This is a great time of year to repurpose your content and utilize social media scheduling tools so that you don’t actually need to be present online to post. That being said, if you post anything you should still check social media so that you can engage with the comments on your posts, because that helps increase visibility. Let what you already have work, harder and smarter for you!

By setting clear boundaries, creating a relaxing routine and taking breaks from work-related tasks, you can help ensure that you fully unplug from work and enjoy your time off during the holidays!

Which of these tips resonate with you and do you have any others to add?

PS – If you’re looking for ways to build your brand during downtime here are a few ideas:

  • Use this time to assess your brand and identify areas for improvement. This could involve updating your website, revamping your social media accounts, or reassessing your target audience.
  • Create valuable content that can be shared during downtimes. This could be blog posts, videos, podcasts or other forms of content that showcase your expertise and add value to your audience.
  • Engage with your audience on social media or through email newsletters. Keep your audience updated on your brand and continue to provide value, even during downtimes.
  • Partner with other brands or influencers to cross-promote your products or services. This can help expose your brand to a new audience and increase your reach.
  • Take advantage of any downtime to learn new skills or attend workshops or conferences. This will help you stay current and improve your expertise, which can benefit your brand in the long run. (Check out my YouTube channel for lots of videos!)
  • Use downtime to reflect on your brand and consider new ways to innovate and stand out in your industry. This could involve launching new products or services, or finding unique ways to differentiate your brand.

Which one of these will you try? Happy holidays!

Article By Stefanie M. Marrone of Stefanie Marrone Consulting

For more business of law legal news, click here to visit the National Law Review.

Copyright © 2022, Stefanie M. Marrone. All Rights Reserved.

Donning & Doffing (Wage Disputes): Old Is New Again

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Our Letter of the Law series is focused on current employment law developments, anddonning and doffing wage disputes are anything but “new” to the courts.  The U.S. Supreme Court and Congress were dealing with donning and doffing work clothing and equipment in the 1940s.  (Perhaps that is obvious given that nobody really says “donning” or “doffing” in recent years other than in this context.)

Donning and Doffing

But donning and doffing, and when employees must be paid for getting dressed for work, continues as an important and tricky wage/hour law issue.  That and the 7th Circuit U.S. Court of Appeals’ “novel approach” to judicial curiosity in Mitchell v. JCG Industries, Inc. merits inclusion as this week’s letter D.  The court in Mitchellrecently weighed in on the proper compensation for workers who are required to don and doff safety protective gear at work.  Union workers in a poultry processing plant brought the suit, alleging violations of state and federal wage laws for the employer’s failure to pay wages for time spent donning and doffing protective work gear.  Workers were required to put on jackets, aprons, gloves, hairnets, and other items at the start of every shift.  In addition, they had to remove and put back on the gear at the start and end of lunch breaks.  The principal issue was whether the employer had to compensate workers for the time spent changing in and out of gear.

Relying on Section 203(o) of the federal Fair Labor Standards Act, the court concluded that donning and doffing time is excluded from compensable time.  In its opinion, the court noted that it took very little time to dress in the gear – and indeed noted that the court staff had done so.  Additionally, the court noted that it would be overly burdensome to require employers to track such time for every employee.

Donning and doffing remains a tricky issue, a perfect example of what lawyers call “fact specific” cases.  Compare DeKeyser v. Thyssenkrupp Waupaca, Inc., 735 F.3d 568 (7th Cir. 2013) (holding that summary judgment was improper to the employer in the case involving foundry employees who were required to shower and change after their shifts).  Employers who require safety and other equipment or clothing must, decades after the law was first passed, continue to watch cases like Mitchell that might affect their decision making on what donning and doffing time must be paid.

Article By:

William A. Nolan
Of:
Barnes & Thornburg LLP

Hostile Work Environment Case Gets Additional Fourth Circuit Scrutiny

Poyner Spruill Law firm

​The Fourth Circuit Court of Appeals has agreed to an en banc rehearing (in which all judges on the court will hear the case) of Boyer-Liberto v. Fountainebleau Corp. after a three-judge panel of the court ruled in May 2014 that the factual allegations in the case did not rise to the level of a hostile work environment. The three-judge panel ruled that because a racial slur used inh the workplace was limited to two occasions arising from a single incident, the plaintiff had not been subjected to a hostile work environment based on her race.

Ms. Boyer-Liberto based her EEOC Charge of Discrimination and subsequent lawsuit against her former employer on two conversations she had with a coworker about an incident that occurred on September 14, 2010. During those conversations, which were on two consecutive days, the coworker twice directed a racial slur at Ms. Boyer-Liberto. One week after the incident, Ms. Boyer-Liberto was terminated from her job. The United States District Court for the District of Maryland granted summary judgment to the former employer, holding the offensive conduct was too isolated to support the plaintiff’s claims for discrimination and retaliation, and the three-judge panel of the Fourth Circuit affirmed that decision. Although the appeals court agreed the term used was “derogatory and highly offensive,” it held “a co-worker’s use of that term twice in a period of two days in discussions about a single incident was not, as a matter of law, so severe or pervasive as to change the terms and conditions of Liberto’s employment so as to be legally discriminatory.”

The Fourth Circuit has agreed to rehear the case, but it is not clear Ms. Boyer-Liberto will fare better on the rehearing although she argued in her petition for rehearing that the three-judge panel’s decision was inconsistent with other court rulings. That panel had specifically addressed the other cases Ms. Boyer-Liberto argued supported her claim and distinguished each as involving a greater number of incidents occurring over a longer time period or involving conduct having long-term, ongoing consequences.

As the panel noted in this case, a hostile work environment exists when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” The Fourth Circuit’s upcoming decision in this case bears watching to see if the court takes the opportunity to expand what has been a relatively narrow definition of hostile work environment. Regardless, employers should promptly investigate any claims of harassment or discrimination, document those investigations, and act quickly to address any harassment or discrimination uncovered in the investigations.

Article By:

Kevin M. Ceglowski
Of:
Poyner Spruill LLP

Work and Travel Guidance for F-1 Students with Pending H-1B “Change of Status” Applications and “Cap-Gap” Employment Authorization

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This advisory summarizes key travel and employment issues if you are an F-1 studentwith Optional Practical Training (OPT) employment eligibility and an H-1B filing on your behalf has been accepted by US Citizenship and Immigration Services (USCIS).USCIS will adjudicate these visa petitions over the next few months and approved petitions will have an October 1, 2014 start date. The good news is that your OPT employment card is automatically extended, by operation of law, with validity to September 30, 2014 under the “cap-gap” OPT extension rule. This means you can continue working legally even after the expiration of your OPT employment card. We recommend that you alert your school’s international student office by providing that office with a copy of the H-1B receipt notice. The international student office will use this receipt information to update your I-20 to show the extension of your OPT.

International travel between now and October 1 is complicated, and whether you can travel and return to work before October 1 depends on your specific situation. As a general rule, it is safest not to travel during the cap-gap period. In all cases, travel as an F-1 student with OPT requires a valid F-1 visa stamp, Form I-20 with updated authorization for travel from your school’s international student office, the OPT Employment Authorization Document (EAD), and proof of current employment in the US (employer letter and/or recent pay slips).

Please note that any international travel carries risks. If your F-1 visa has expired and you need to apply for a new one, you may face delays for extra security clearances (221(g) administrative processing), or you may not be able to prove you have nonimmigrant intent, which is required for F-1 visa applications. Furthermore, even with a valid F-1 visa, admission to the US is up to the discretion of the US Customs and Border Protection (CBP) officer at the port of entry. We therefore caution you to carefully consider the need to travel as an F-1 student with OPT and list below some of the common scenarios and our recommendations.

1. My OPT employment card has not expired and my H-1B petition has been accepted, but not yet approved.

If you travel outside the US in this situation, the change of status part of your H-1B petition will be abandoned. This means that even when the H-1B is approved, your status will not change to H-1B because you departed the US while the H-1B “change of status” petition was pending. Your employment eligibility will end on September 30, 2014 with expiration of the cap-gap extension, and you will need to depart the US, apply for an H-1B visa stamp based on the petition approval, and reenter after October 1, 2014 to activate your status as an H-1B worker.

2. My OPT employment card has not expired and my H-1B has been approved.

In this situation, according to guidance from USCIS, it is possible to travel and not abandon the change of status because it has already been approved and is for a date in the future. Since there is no abandonment, once you return to the US on your F-1 visa, your change of status will be effective on October 1. However, there is a very real risk in traveling in this scenario as upon approval by USCIS of your H-1B petition, the Student and Exchange Visitor Information System (SEVIS) may no longer reflect that you are an F-1 student and you may have difficulties entering the US in F-1 status.

3. My OPT employment card has expired.

In this situation, you are eligible to remain in the US and continue working under the cap-gap extension rule discussed above. However, there is no provision or guidance from USCIS that allows for reentry during this cap-gap period once your EAD has expired. Therefore, if you must depart the US during this period, you will not be able to return to the US until you obtain an H-1B visa stamp based on approval of the H-1B petition. Initial entry into the US on an H-1B visa is allowed up to 10 days in advance of the start date of the petition approval. So, for an October 1 start date, this entry date can be as early as September 21. However, you will not be able to resume employment until October 1, 2014. Unless there is an emergent need to travel and arrangements can be made for remote work outside the US, you should make no plans to travel after expiration of your OPT employment card.

4. I need to depart the US and will not return until October 1 or later and will apply for the H-1B visa.

You can apply for the H-1B visa stamp any time after approval of the H-1B petition as soon as you can schedule an appointment at the US Embassy or Consulate. The visa will not be effective until October 1, 2014, but you can, and are encouraged to, apply for it as soon as possible to avoid the rush in September. Please note H-1B nonimmigrants are allowed to enter the US up to 10 days in advance of the petition validity. However, you cannot start employment in H-1B status until October 1. This 10-day time period is intended to allow you to get settled in the US before starting employment.

5. My H-1B petition was denied by USCIS.

If your H-1B petition is denied and your OPT EAD is still valid, you are authorized for ongoing employment in the US until your EAD expires. However, cap-gap employment eligibility after expiration of the EAD is only valid while the H-1B petition is pending with USCIS. Therefore, you are no longer eligible to continue working in the US if your H-1B petition is denied and your OPT EAD has expired.

The examples above all deal with the situation where the H-1B filing has been accepted by USCIS out of the quota. If the H-1B petition filed on your behalf was rejected, you may choose to travel if you have a valid F-1 visa stamp, Form I-20 with updated authorization for travel from your school’s international student office, the OPT Employment Authorization Document (EAD), and proof of current employment in the US in the form of an employer letter and/or recent pay slips. You may also stay in the US for 60 days after the expiration of your F-1 OPT status, but only for purposes of settling your personal affairs and domestic travel within the US. You are not allowed to work during this 60-day grace period. If you travel outside the US during the 60-day grace period, even if you do not plan to work upon your return, you will not likely be readmitted because you will be deemed to have departed the US at the conclusion of your F-1 program, thus fulfilling the need for the 60-grace period. The 60-day grace period is not meant to facilitate international travel and reentry — it is designed to allow F-1 students to remain in the US at the end of the F-1 program to settle their affairs until they are ready to depart the US.

Article By:

Susan J. Cohen
William L. Coffman
Of: 
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.