Webinar Invitation

Thursday, February 2, 2023 at 12:30pm ET

The Federal Trade Commission’s (“FTC”) proposed rule banning the use of non-competes with employees and workers could regulate almost all employers in the nation. If this proposal becomes final it could also prohibit non-disclosure, non-solicitation, and non-recruitment agreements that prevent employees from jumping to rivals.  

Join Kelley Drye in a discussion to explore how this proposed rule may impact your company and get practical tips on how employers can prepare for a world with endangered noncompetes.

We will cover the following topics:

  • What exactly would the proposed rule prohibit?
  • Could a rule this sweeping become final?
  • What can we expect in the next several months?
  • What should employers do to prepare? 

To RSVP for this webinar, please click here.

The FTC’s proposal to ban noncompete clauses is vulnerable to challenge. Kelley Drye’s Antitrust and Competition attorneys (who are also former FTC officials) share their thoughts on the most significant concerns. Read more on the agency’s authority to propose this ban, how to engage in the rulemaking, and what challenges we’re likely to see in the courts. – https://www.adlawaccess.com/2023/01/articles/the-ftcs-proposal-to-ban-noncompetes-is-on-shaky-legal-ground/

When the FTC proposes a rule that could regulate nearly every employer in the nation, we take notice. In this second installment of our series on the FTC’s proposed rule to ban noncompete agreements, we provide a pragmatic look at the road ahead.

What has the FTC actually proposed? How can individual firms and industry groups alike weigh in on one of the most substantial regulatory actions facing employers right now? And what should businesses do to prepare? Here’s your deep dive. 

Continue Reading FTC Insights: How Employers Can Prepare for a World Without Noncompetes

On January 5, 2023, the Federal Trade Commission announced a sweeping proposal to regulate virtually every labor and service relationship in the United States, and make it more lucrative for people to quit. leave their current jobs by removing the enforceability of non-compete clauses. If a final rule emerges from this proposal, virtually every employer in the United States will be impacted.

William Macleod, chair of Kelley Drye’s Antitrust and Competition practice and former bureau director at the U.S. Federal Trade Commission (FTC) weighs in to address the broad implication of this proposal, the thinking behind the agency’s proposal, whether or not the agency can change course, and what will happen if a final rule emerges?  Click here to read more – https://www.adlawaccess.com/2023/01/articles/ftc-proposes-to-regulate-virtually-every-labor-relationship-in-the-united-states/#more-11287

An ideologically recalibrated National Labor Relations Board (“NLRB”) implemented an important right for labor unions who seek to organize a bargaining unit comprising less than a full complement of a location’s workers. Whether union organizers face significant opt-out rates among the workforce or there are other legitimate reasons to exclude portions of the employee complement, the path to unionization became much easier after the NLRB’s December 14, 2022 decision.

Who Needs to Keep Reading?

Any employer nationwide preparing for, concerned about, or currently involved in union organizing activity within their workforce. This decision will likely affect the strategies taken to combat organizing efforts and to contest them before the NLRB.

Continue Reading Ideologically Recalibrated NLRB Restocks Union Organizing Toolbox

In a notable victory for the #MeToo movement, President Biden recently signed the “Speak Out Act” into law. It became effective December 7, 2022.

This bipartisan legislation targets and effectively prohibits the use of pre-dispute nondisclosure agreements, which would cover claims of sexual harassment or assault in the workplace. The law only prohibits enforcement of pre-dispute agreements, which means employers can still utilize NDAs in post-dispute agreements, such as settlements.

Many states, like New York, have already passed laws restricting the use of NDA’s in settlement agreements, so depending on the state where you are located, this may not be a major change. But for employment attorneys and HR professionals, this should be a signal to review all new employment contracts. In a broader sense, you may have to revisit how your company responds to workplace sexual harassment and assault allegations now that it has become more difficult to quietly resolve.     

Here’s what you need to know:

What does the Speak Out Act do, exactly?

Under the Act:   

  • Any agreement to keep the details of any future sexual harassment or assault dispute confidential is unenforceable. This applies to all employment contracts: past, present, or future.
  • Any prospective nondisparagement clause that purports to limit an employee’s ability to speak out about sexual harassment or assault is also unenforceable.
  • Trade secrets and proprietary information are explicitly protected under the law and employers may use NDAs to safeguard this information.
  • States may continue to enforce laws that are more protective of an employee’s right to speak publicly about sexual assault and harassment.

Throughout the #MeToo era, NDAs have come under fire for preventing victims from speaking publicly but remain commonly used in hiring, promotion, and severance contracts. In fact, approximately one third of workers have signed broader agreements not to disparage their employers or disclose details of their employment.

Despite its seemingly clear purpose, the Act’s ambiguities are likely fodder for future court challenges. For instance, the law targets only “pre-dispute” agreements but does not define the term. This means courts may interpret a “dispute” to include a narrow set of actions (such as a formal complaint or even litigation) or broader swath (say an informal HR complaint).

Also, the law does not specify what a company must do to address existing employment agreements which may contain clauses that violate the new law.  We would advise leaving those agreements in place, as trying to get new agreements signed again could be impossible. Just be aware that a requirement of an NDA could be unenforceable.

The Act also looks to other federal, tribal, or state law in defining the terms “sexual assault” and “sexual harassment. ” Notably, in 2020, the Supreme Court interpreted Title VII’s sex protections to include protection against discrimination based sexual orientation and gender identity. The scope of these definitions may be contended.  And while the law does not prohibit the use of NDAs in other contexts, such racial bias or disability, discrimination claims are often intersectional and contain several allegations. For now, employers may be wise to interpret the Act broadly.

How does this compare to state law trends?

The federal law creates a floor, not a ceiling. More than a dozen states have already passed legislation limiting employee NDAs, including California and New York.  

California: California has severely limited NDA enforcement for all forms of workplace harassment and discrimination.  The state prohibits confidentiality agreements as a condition of employment that prevent an employee from disclosing most unlawful workplace conduct. And unlike the federal law, California’s law also bans confidentiality provisions in settlement agreements that prohibit an employee from discussing the underlying facts of the case. Agreements to protect the worker’s identity or safeguard the amount paid are permitted. Again, California law applies to all forms of harassment and discrimination, including sex, religion, color, national origin, disability, familial status, gender, age and others.

New York: The Empire State has similarly outlawed agreements that prevent the employee from disclosing the underlying facts and circumstances related to an employment discrimination claim. Like California, the legislation originally applied only to sex discrimination, but was expanded in subsequent iterations. New York lawmakers have also introduced legislation that would ban most NDA and nondisparagement clauses that prevent disclosure of harassment or discrimination in employment contracts.  

What should employers do now?

The Speak Out Act is hardly the first of its kind. Last March, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, prohibiting enforcement of any pre-dispute arbitration agreement in these types of cases. With these trends in federal and state law, employers must take action:

  • Update your new employment contracts. While the law does not prohibit broad agreements full-stop, HR departments should review new agreements and ‘form’ agreements, to ensure they will withstand legal scrutiny. You do not need to change or try to get existing agreements signed anew.  Just be aware that a requirement of an NDA is likely not enforceable.  
  • Refresh your training materials and HR response policies. Ensure your company’s response is in compliance with federal and state laws. This includes training supervisors and updating company policies.
  • Consult counsel. Speak with an attorney if you have any questions about this new federal law or your obligations under state law.

We’re monitoring employment law trends on Capitol Hill and across the nation. Subscribe to stay up-to-date with the legal developments that will most impact your company in the months to come.

Continue Reading The Fall of the NDA: Compliance and Litigation Following the Speak Out Act

A wave of labor strikes in October of 2021 led experts to dub the month “Striketober.” And this year, we saw the trend continue as companies across the nation faced a number of work stoppages through late-September and October. As the second Striketober comes to an end, we look at the general trends in labor organizing and what employers should expect in the months ahead.

First, the Supreme Court is poised to take action. The Court recently agreed to consider a case at the heart of the right to strike: Can employers sue unions in state court when strikes cause economic harm, such as destruction of property?

The case arises from a dispute between a cement company and its truck drivers in Washington state. Contract negotiations between the local Teamsters union and employer, Glacier Northwest, had broken down. In August of 2017, union leaders instructed drivers to bring their trucks back to the yard and strike. According to the company, the union intentionally timed this so that the concrete in the trucks had already been mixed, which could solidify in the drums and destroy them. The union countered that the trucks were left running so the concrete wouldn’t harden. Glacier Northwest sued the union to recover damages.

This will be the Court’s first major labor decision since 2018. If the judges side with the Glacier Northwest, it will likely open the door to more litigation between unions and employers when labor action causes economic harm to an employer. Be sure to look out for an alert when this case is decided. Continue Reading The Supreme Court and Lessons from “Striketober”: What Should Employers Expect?

The Illinois Biometric Information Privacy Act (BIPA) has been on the books as one of the nation’s most protective biometric privacy statutes since 2008. It was also one of the first to give individuals a cause of action for monetary damages against individuals or companies that violate the law. For the first time in the Act’s 14 year history, however, a case has been tried before a jury to a verdict. The Rogers v. BNSF trial recently wrapped up in the U.S. District Court for the Northern District of Illinois, with Judge Matthew Kennelly presiding and the $228 million verdict stunning, but not surprising, many who have been following BIPA developments.

Despite BIPA’s relatively maturity, basic questions still remain as to the scope of the statute. Most pressingly, the applicable statute of limitations for violations of the Act (how many years a plaintiff has to file a lawsuit after a violation), and the number of BIPA violations that may accrue have not been decided. Continue Reading BIPA Goes on Trial

The NYC Pay Transparency Law will go into effect this week. Starting November 1, 2022, employers with four or more employees advertising jobs in NYC must include the minimum and maximum salary that the employer believes in good faith at the time of the posting they are willing to pay for the advertised job, promotion, or transfer opportunity.

Employers can access the City’s most recent and complete guidance here, but below are a few highlights:

  • Employers should comply with the new requirements when advertising for positions that can or will be performed, in whole or in part, in NYC, whether from an office, in the field, or remotely from the employee’s home.
  • “Good faith” means the salary range the employer honestly believes at the time they are listing the job advertisement that they are willing to pay the successful applicant(s).
  • Salary includes the base annual or hourly wage or rate of pay, regardless of the frequency of payment, and does not include other forms of compensation or benefits (e.g., health insurance, severance pay, or 401(k)).
  • An “advertisement” is a written description of an available job, promotion, or transfer opportunity, regardless of the medium by which the description is disseminated (e.g., internal bulletin boards, internet ads, printed flyers).

Continue Reading Compliance Reminder – NYC Pay Transparency Law Takes Effect November 1, 2022

The Great Resignation of 2021 and 2022  has spawned what we are calling “The Great Rehire.” To sort through the deluge of new applicants, many employers have become more reliant on technology such as artificial intelligence and automated employment decision tools (AEDT).

If you are using AI and/or AEDT, beware. Starting January 1, 2023, New York City employers will be subject to one of the most sweeping regulations governing AEDT to date.

Local Law 144 prohibits employers from using AEDT in hiring or promotion decisions unless they have taken several affirmative steps, including conducting a bias audit. This may include tools like resume-scanning software and more advanced “chatbots” and “job-fit” algorithms. Continue Reading An Employer’s Guide to NYC’s New AI Law – Are You in Compliance?