The long-awaited rule from the Federal Trade Commission regarding noncompetes was released yesterday, and it's a doozy. The FTC "has determined that it is an unfair method of competition, and therefore a violation of Section 5 of the FTC Act, for employers to enter into noncompetes with workers and to enforce certain noncompetes." You can safely assume there will be lots of litigation over this new rule. And I wouldn't hold my breath that the Supreme Court in its current makeup will uphold it. Meanwhile, until a court says otherwise, the rule is in place. What does it mean? Effective date:&nbs ..read more

I know. I know. I keep saying there's no such thing as free speech at work. But while you workers don't have First Amendment protection in private workplaces, private employers do. Because corporations are "people" too. The distinction: the First Amendment prohibits restrictions on speech by government, not by individuals or corporations. Confused yet? Well, I'm here specifically to discuss Florida's "Stop Woke" law* that said employers couldn't have trainings about not engaging in racism and discrimination in the workplace. The 11th Circuit just held that "Stop Woke" is a clearly illegal rest ..read more

Amazon has now joined SpaceX and Trader Joe's in asking that the National Labor Relations Board be deemed unconstitutional. With the Supreme Court in its current configuration, there's a real possibility that they could decide NLRB should no longer exist or be substantially gutted.  That would be a terrible thing for employees, and for Americans in general. Here's why. NLRB is the agency that handles unfair labor practices complaints against both employers and unions. That's what they're mostly known for. But they do so much more. Here are some lesser-known rights NLRB enforces: The righ ..read more

 EEOC has issued a guidance to assist workers with visual disabilities regarding their workplace rights. This guidance discusses: when an employer may ask an applicant or employee questions about a vision impairment and how an employer should treat voluntary disclosures; what types of reasonable accommodations applicants or employees with visual disabilities may need; how an employer should handle safety concerns about applicants and employees with visual disabilities; and how an employer can ensure that no employee is harassed because of a visual disability. Who is covered: EEOC says ..read more

 The NLRB General Counsel is taking the position that noncompete agreements in employment and severance agreements violates the National Labor Relations Act. Non-compete provisions are overbroad, that is, they reasonably tend to chill employees in the exercise of Section 7 rights, when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, aptitudes, and preferences as to type and location of work. Generally speaking, this ..read more

The National Labor Relations Board has ruled that employees who advocate for non-employees such as applicants and interns are legally protected by the National Labor Relations Act. The NLRB Chair said, "“Standing in solidarity can be a protected act regardless of the employment status of those you stand with — the question is simply whether, in helping others, employees might help themselves and get help in return." The case involved an employer's refusal to rehire a former employee. An employee who attempted to rally coworkers in support of the former employee was deemed legally protected ..read more

In a total game-changer, the NLRB has ruled today that, where an employer commits unfair labor practices before a union election, the union is automatically recognized and the employer must bargain.  It doesn't appear to apply to every unfair labor practice in every election. But it will force employers to behave better before union elections or risk having the union automatically recognized. Here's a summary: It applies where a majority of employees have said they want the union to represent them and the employer either challenges the union majority and demands an election. It applies i ..read more

The Pregnant Workers Fairness Act is now in effect, as of June 27, 2023. It applies to most employers with 15 or more employees. It requires employers to grant reasonable accommodations to employees with known limitations related to pregnancy, childbirth, or related medical conditions. EEOC has provided details on what is required: Covered employers cannot:  Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer; Deny a job or other employment opportunities to a qualified employee or applicant based on the per ..read more

NLRB has issued a new standard for evaluating employer work rules and employer handbooks. It applies to non-union and union workplaces that are covered under the National Labor Relations Act, which means most employers are covered. Under the new standard, the person challenging a rule or handbook provision must prove that the challenged rule has a reasonable tendency to chill employees from exercising their rights to engaged in concerted activity to discuss or change working conditions. If so, then the rule is presumptively unlawful.  However, the employer may rebut the presumption by pro ..read more

 Although we've been hoping that the FTC would come through on its proposed rule banning or limiting noncompete agreements, it looks like we'll have to wait. They've announced they won't be voting on the final rule until April 2024.  That's bad news for workers. Noncompetes have been abused to suppress wages, prevent employees from looking for better jobs, create fear among employees that they will be terminated and unable to work, and force employees to work in terrible conditions. They've been used against sandwich makers and receptionists.  That doesn't mean you have no remed ..read more