On April 23, 2024, the Federal Trade Commission (“FTC”) issued a Final Rule (the “Rule”) prohibiting the use of non-compete restrictive covenants (with a limited exception) throughout the United States as an unfair method of competition under the FTC Act. The Rule is set to become effective 120 days after it is published in the Federal Register, but employers will face certain compliance obligations that will apply prior to the effective date. The Rule prohibits employers from: (1) entering into; (2) attempting to enter into; (3) enforcing; (4) attempting to enforce; or (5) representing that a ..read more

On April 23, 2024, the U.S. Department of Labor issued its Final Rule sharply increasing the minimum salary requirements for the Fair Labor Standards Act’s white-collar overtime exemptions.  These changes, if they ultimately take effect, will affect the overtime exemption eligibility for millions of currently exempt employees nationwide. Background and History The FLSA’s white-collar exemptions apply to “bona fide” executive, administrative, and professional employees and generally include both a minimum salary requirement and a duties test.  To establish that an employee is properly ..read more

Way back in 2018, we wrote about the Supreme Court of the United States’ decision in Janus, which held that compelling public sector employees to pay “fair share fees” to unions violates the First Amendment. As a refresher, a fair share fee is a fee that non-union members must pay to the union to cover the expenses incurred by the union in representing bargaining unit employees.  For the most part, the fair share fees were paid by employees who had opted out of becoming full, dues-paying union members. Janus made clear that fair share fees were illegal even where expressly authorized by s ..read more

On February 21, 2024, the National Labor Relations Board (“NLRB”) issued a decision finding that Home Depot violated Section 8(a)(1) of the National Labor Relations Act (“Act”) by using Home Depot’s dress code to require an employee to remove the acronym “BLM,” an initialism for “Black Lives Matter,” from the Employee’s work uniform. The decision was the latest in a run of NLRB decisions that employers should consider when applying workplace policies. The NLRB reversed an Administrative Law Judge (“ALJ”)’s holding that Home Depot did not violate the Act because “BLM” does not have an “objectiv ..read more

On January 9, 2024, the U.S. Department of Labor (“DOL”) issued a long-awaited Final Rule that addresses when a worker is properly classified as an independent contractor under the Fair Labor Standards Act (the “FLSA”).  Under its new Rule, independent contractors are characterized as those workers who, as a matter of economic reality, are not economically dependent on an employer for work; rather, they are in business for themselves. The FLSA establishes, among other things, the federal minimum wage and requires covered employers to pay their employees one and one-half times the employee ..read more

If you are gearing up for union negotiations in 2024, do not miss the opportunity to review current and past practices that may not have been incorporated into expiring collective bargaining agreements.  Trust me, it will be worth the effort to dig up and review all of the side letters, settlements and memoranda of agreement that the parties have entered into since the last CBA was signed.  You should insist that the Union engage in that effort too, especially if you intend to propose or freshen up an integration or zipper clause. What’s the Difference? Last week, the National Labor ..read more

We wrote in August about major updates to the Davis-Bacon regulations issued by the Department of Labor.  The Final Rule updating those regulations became effective on October 23, 2023.  In the time since, contractors have been working to ensure compliance with the new requirements, including, among other things, seeking approval from the DOL before taking Davis-Bacon fringe credit for unfunded benefit plans, like PTO and holiday pay. Recently, however, the Associated Builders and Contractors, Inc. (“ABC”), and its Texas affiliate, filed suit against the DOL (including its Acting Sec ..read more

On August 31, 2023, the National Labor Relations Board issued a decision in Miller Plastic Products, Inc. that will make it easier for a single worker’s action to be considered “concerted” under the National Labor Relations Act. In a 3-1 decision, the Board overruled its 2019 decision in Alstate Maintenance, which had narrowed the circumstances in which the Board considered solo protests to be concerted activity and, thus, protected activity under the NLRA. For reference, in Alstate Maintenance, an employee working at JFK International Airport was terminated for a comment h ..read more

On August 2, 2023, the National Labor Relations Board reversed precedent on the issue of work rules that proscribe employee personal conduct. In Stericycle, the Board reversed and remanded an ALJ’s decision that found the employer violated Section 8(a)(1) by maintaining work rules addressing personal conduct, conflict of interest, and confidentiality of harassment complaints. In ruling against the employer, the ALJ had applied the standard established in Boeing Co 365 NLRB No. 154 (2017). The Boeing rule required the evaluation and balancing of two factors: 1) the extent of the potential ..read more

On August 30, 2023, the U.S. Department of Labor issued proposed regulations that would sharply increase the minimum salary requirements for the Fair Labor Standards Act’s white-collar overtime exemptions.  These proposed regulations, if they take effect, would impact millions of currently exempt employees and create significant compliance issues for many employers. Background and History The FLSA’s white-collar exemptions are applicable to “bona fide” executive, administrative, and professional employees and generally include both a minimum salary requirement and a duties test.  To ..read more