Last week, the Federal Trade Commission responded to efforts by a Texas business and the U.S. Chamber of Commerce to convince a Texas federal judge to block the Federal Trade Commission’s final Non-compete Rule, which would impose a comprehensive ban on new non-competes with all workers, including senior executives. The FTC’s brief is 54 pages long. I’ll dissect it for you in a few hundred words. The challenge to the FTC’s rule won’t succeed. The FTC spends most of its brief arguing that its non-compete ban is lawful. More specifically, the FTC posits that Congress delegated au ..read more

The Society for Human Resource Management (SHRM), with nearly 340,000 members in 180 countries (of which I am one), filed an amicus brief last week in a lawsuit pending in Texas in which it supported efforts to block the Federal Trade Commission’s final non-compete Rule. The FTC seeks to impose a comprehensive ban on new non-competes with all workers, including senior executives. Although SHRM does not oppose the use of “reasonable, narrowly tailored non-compete agreements,” it is concerned a “blanket ban” will “stifle innovation, limit training opportunities and harm business and w ..read more

In employment discrimination cases where a defendant-employer articulates a legitimate, nondiscriminatory reason for the employment action, the plaintiff has the burden then shifts to the plaintiff-employee to establish that the employer’s reason was a pretext for discrimination, i.e., the defendant’s reason for, say, terminating the plaintiff’s employment is false. Without some direct evidence of discrimination, the plaintiff will attempt to offer evidence that the defendant’s employer’s reasons for their actions are implausible, inconsistent, or contradictory. The U.S. Equal Employment Oppo ..read more

“An employer’s free speech right to comment upon matters that affect the business is firmly established,” noted a Vermont federal judge earlier this month. “But when such commentary is a threat of retaliation … it is without the protection of the First Amendment.” That’s fancy speak for employers can’t use social media to retaliate against employees, current or former. The case involves an employee who believed he was shorted overtime in his paycheck and texted his boss that he would go to the “labor board.” Wouldn’t you know it? The employee got fired and promptly complained to the U.S. Depa ..read more

Yesterday, several employer groups and associations filed a federal lawsuit in the same court that, in 2017, stymied the U.S. Department of Labor‘s efforts to change the overtime rules by raising the minimum salary level needed to be exempt from receiving overtime. As I’ll explain below, the 2024 plaintiffs have also raised the same arguments that worked seven years ago. It’s déjà vu all over again. In 2016, the DOL issued a rule that would have increased the minimum salary required to classify executive, administrative, or professional (“EAP”) employees as exempt from overtime pay under the ..read more

Yesterday, a federal appellate court issued a precedential opinion clarifying when employers must pay employees and provide certain benefits while they take short-term military leave under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). USERRA is a federal law that protects servicemembers’ and veterans’ civilian employment rights. In many situations, USERRA guarantees reemployment rights for employees who leave to perform service in the uniformed service. But isn’t the leave itself unpaid? Not necessarily. USERRA entitles employees who take military leave “to ..read more

The U.S. Equal Employment Opportunity Commission recently issued two press releases: one announcing a disability discrimination lawsuit and another about a recent settlement of age and disability discrimination claims. Both involve supervisors who allegedly thought they knew more than medical professionals. They were wrong. In the pending lawsuit, the EEOC alleges the employer hired a package delivery driver who divulged having a disability that can cause pain and inflammation throughout the body. After the new hire completed multiple training shifts, the company assigned the employee to a tr ..read more

A single incident, like a supervisor calling a black employee the “n” word, may be enough to create a hostile work environment. But what if the victim doesn’t witness it? For example, in a recent federal court decision, the plaintiff, a black man, testified in his deposition that his supervisor had referred to the plaintiff as a “stupid [expletive] [n-word]” to one of the plaintiff’s coworkers. Later, that coworker told the plaintiff about it. Is that single incident outside of the plaintiff’s presence severe enough to create a hostile work environment for him? The “n”-word is bad. Very bad ..read more

The New Jersey Supreme Court has weighed in not once but twice this month on important employment law issues. So, if you operate a business in the Garden State, I’ll bring you up to speed on that, plus some new pending legislation. (For the rest of you, have a nice weekend, and maybe add some pork roll or Taylor Ham to your breakfast sandwich.) Nondisparagement provisions in settlement agreements. On May 7, the Supreme Court explored whether an employer can enforce a nondisparagement provision in a settlement agreement that precludes a plaintiff from discussing their underlying claims under N ..read more

Earlier this week, the U.S. Chamber of Commerce told a Texas federal judge to block the Federal Trade Commission’s final Noncompete Rule, which would impose a comprehensive ban on new noncompetes with all workers, including senior executives. Here is a link to the 40-page brief. But I’ll break it down for you in about 400 words. To convince the court to ice the rule now, the Chamber must convince the judge that (1) it will likely prevail on the merits (i.e., the FTC Rule is invalid), (2) it will suffer irreparable harm without an injunction, and (3) an injunction will service t ..read more