Labor & Employment Insights — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

Heat Stress: OSHA’s Proposed New Rule and What it Means for Employers

Published on: September 9, 2024 | by James K. Estabrook and Gozde Celik

On August 30, 2024, the Occupational Safety and Health Administration (OSHA) published in the Federal Register its proposed regulations for Heat Injury and Illness Prevention in Outdoor and Indoor Settings, delivering on the Biden administration’s three-year long promise to have the agency put forward a rule to protect workers from heat related injuries and deaths. The proposed measure would be the first comprehensive federal regulation to address the recent increase in heat related emergencies occurring across a large swath of workplaces, including farms, construction sites, warehouses, and commercial kitchens.

Industry Backlash and Legal Uncertainty

Although many states have adopted or proposed their own heat safety regulations, OSHA’s proposed rules, due to their wide application and extensive requirements, have received more backlash than their state counterparts, indicating that the implementation of the rules is likely to face many challenges. The proposed regulations come in during the tail end of President Biden’s first term and are also vulnerable to an administration change where Former President Donald Trump has expressed a contrary intent to roll back on OSHA’s regulations on private industry, thereby indicating that his administration could block the rule’s implementation. Additionally, the extent of OSHA’s, as well as other federal agencies’, ability to rule make and enforce their regulations has been questioned by the Supreme Court in its decision overturning the Chevron deference in Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, which places the proposed rule into even more uncertainty.

Not So Fast: Texas District Court Blocks FTC’s Ban on Noncompete Agreements

Published on: August 22, 2024 | by Kathleen M. Connelly

On August 20, 2024, the U.S. District Court for the Northern District of Texas invalidated the Federal Trade Commission’s (FTC’s) final rule that effectively banned the use of noncompete agreements by U.S. employers. The ruling comes just in time for employers facing the inability to enter into or enforce noncompete agreements when the rule was slated to go into effect on September 4, 2024.

The Texas court reasoned that the FTC exceeded its constitutional authority by proposing “arbitrary and capricious” sweeping prohibitions against noncompete agreements rather than a more targeted ban on specific noncompete provisions that are deemed unfair competitive practices. In addition, the court noted that only Congress is authorized to issue substantive rules banning non-competes, whereas the FTC’s authority is limited to procedural rules aimed at implementing legislation passed by Congress, adding “[t]he role of an administrative agency is to do as told by Congress, not to do what the agency thinks it should do.”

Prior Judicial Proceedings:

Employers Should Audit Exempt Classifications in Response to USDOL’s Increased Salary Requirements to Qualify For Overtime Exemption

Published on: May 17, 2024 | by Kathleen M. Connelly

On April 24, 2024, the U.S. Department of Labor (DOL) announced a long anticipated final rule increasing the minimum salary requirements that “white collar” and highly compensated employees must meet to qualify for exemption from the overtime requirements of the Fair Labor Standards Act (FLSA). It is estimated that the rule could impact up to 4 million employees who may now be eligible for overtime pay unless employers increase their salaries to meet the new requirements.

Two-Phased Increase for White Collar Exceptions

The DOL’s rule announced a phased-in increase in the salary basis test applicable to the white collar exemptions for executive, administrative and learned professional employees.

NJ Supreme Court Limits Use of Non-Disparagement Provisions in Employment Settlement Agreements

Published on: May 9, 2024 | by Joshua L. Weiner

In a unanimous opinion, the New Jersey Supreme Court recently held that a non-disparagement provision in a settlement agreement that prevented a former employee from revealing details about allegations of sexual harassment, sex discrimination and retaliation was against public policy and cannot be enforced.

The plaintiff, a former police sergeant, appealed a trial court order enforcing a non-disparagement provision in a 2020 settlement agreement reached in her employment discrimination case. Under the non-disparagement clause, the plaintiff was barred from making any statements “regarding the past behavior of the parties” that would “tend to disparage or impugn the reputation of any party.” The agreement clearly stated that the provision extended to statements to the media, government offices and the general public. After the settlement was reached, the plaintiff was interviewed by a reporter for NBC’s Channel 4 News, where she stated that the police department had not changed because “it’s the good ol’ boy system,” among other things. The department and various officers then filed a motion to enforce the non-disparagement provisions of the agreement.

The trial court granted the defendants’ motion, ordering the plaintiff not to give further interviews or to make disparaging statements. The judge declined to award the roughly $23,000 in damages sought by the defendants but awarded counsel fees of $4,917.50 for the plaintiff’s breach of the clause. The Appellate Division affirmed in part and reversed in part, holding that while the terms of the non-disparagement provision were enforceable, the plaintiff did not break them during the television interview.

FTC Issues Final Rule Banning Non-Compete Agreements in the U.S.

Published on: April 26, 2024 | by Kathleen M. Connelly

On April 23rd, 2024, the Federal Trade Commission (FTC) approved a final rule that effectively bans the use of non-compete agreements by U.S. based employers. The final rule is substantially similar to the proposed rule announced in January 2023, and represents a sweeping change in the ability of employers to rely upon preexisting as well as future non-compete clauses to protect against unfair competitive practices. The final rule will go into effect 120 days after its publication in the Federal Register, which is expected shortly.

The final rule defines a non-compete clause as any agreement that prohibits, penalizes or functions to prevent a worker from (1) seeking or accepting work in the U.S. with another employer or (2) operating a business in the U.S., after a separation of employment.

The Scope of the FTC Ban

SCOTUS Ruling Likely to Spawn More Challenges to Job Actions

Published on: April 19, 2024 | by Kathleen M. Connelly

In its April 17th, 2024, ruling in Muldrow v. City of St. Louis, the United States Supreme Court significantly eased the burden for employees challenging mandatory job transfers as a discriminatory action in violation of Title VII of the Civil Rights Act of 1964. The Court’s ruling makes it clear that to advance such a claim, the employee need only show that the transfer resulted in “some harm” rather than “significant harm” to the terms and conditions of employment. The Court’s groundbreaking decision resolves a split among the circuit courts, with numerous circuits applying a heightened standard that required proof of “substantial harm” to the employee.

The Challenged Transfer

Police Sergeant Jatonya Muldrow worked for nine years as a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division. After a new Division Commander was hired, Muldrow was reassigned to a uniformed position in another district at the same rank and pay, against her wishes. Muldrow claimed that because she was no longer in the Intelligence Division she lost her FBI status, department vehicle, and other perks. In addition, the transfer to the “less prestigious” uniform patrol changed her regular schedule to a rotating schedule that included weekend shifts. Muldrow claimed she was transferred because the new Commander wanted to replace her with a male officer, in violation of Title VII.

What to Expect Under the EEOC’s Final Regulation on the Pregnant Workers’ Fairness Act

Published on: April 17, 2024 | by Kathleen M. Connelly

On April 15, 2024, the U.S. Equal Employment Opportunity Commission issued final regulations that clarify the obligation of employers to provide reasonable accommodation to pregnant workers under the Pregnant Workers’ Fairness Act (PWFA) that went into effect in June 2023. While employers should review the final regulations linked here for further details, some highlights from new regulations are discussed below.

The Employer’s Obligations Under the PWFA:

The PWFA requires employers of 15 or more to provide reasonable accommodations “to the known limitations of a qualified employee related to pregnancy, childbirth, or related medical conditions, absent undue hardship.” The regulations specify that employers are prohibited from:

Revamped COVID Guidance From the CDC Drops 5-Day Isolation Rule

Published on: March 5, 2024 | by Kathleen M. Connelly

Emergency room visits and hospital admissions for COVID-19 are down more than 75%, and deaths are down by more than 90%, from the peak of the Omicron wave in January 2022. As the COVID epidemic moves farther into the horizon, the Centers for Disease Control and Prevention (CDC) has modified its guidance for the period of isolation that must be observed by individuals testing positive for COVID-19.

At the onset of the COVID epidemic in 2020 the CDC issued its isolation guidance calling for 10 days of isolation for persons testing positive for COVID-19, which was reduced to 5 days in 2021. On Friday, March 1, 2024, the CDC issued revised guidance which now says individuals testing positive can return to work and other normal activities if i) the COVID symptoms are improving, and ii) the individual has been fever-free for at least 24-hours without medication. However, the new guidance does not apply to healthcare setting.

In his announcement of the new isolation rules, CDC Director Mandy Cohen stated that the CDC’s revision “reflects the progress we have made in protecting against severe illness form COVID-19.” The CDC also pointed to a recent survey indicating that less than 50% of people with cold or cough symptoms would take an at home test for COVID 19, and less than 10% indicated that they would get tested by a pharmacy or healthcare provider. According to Georges Benjamin, Executive Director of the American Public Health Association, the CDC’s new position is more realistic than asking individuals to isolate for 5 days.

NLRB Finds That Wearing BLM Logo in the Workplace is Protected Concerted Activity

Published on: March 4, 2024 | by Kathleen M. Connelly

In a ruling that could have far reaching implications in both unionized and non-union work environments, the National Labor Relations Board (“NLRB” or “Board”) ruled that Home Depot violated Section 7 of the National Labor Relations Act (NLRA) when it terminated an employee for refusing to remove a BLM logo from his company apron that violated Home Depot’s dress code prohibiting the display of causes or political messages unrelated to the workplace.

Although not the first time the Board has addressed the right of employees to don attire with BLM insignia, the ruling provides insight on the factors the Board will find sufficient to rule that employer dress codes must yield to employees’ expressions of support for social justice movements or other political causes.

The Prior Rulings

Ruling Illustrates the Importance of the “Interactive Process” to Successfully Defend a Failure to Accommodate Claim

Published on: February 22, 2024 | by Kathleen M. Connelly

The duty to provide “reasonable accommodation” to an employee with a disability under the Americans with Disabilities Act (ADA) or the New Jersey Law Against Discrimination (LAD) poses significant challenges and legal risks to employers. Determining when an employee’s request for a workplace accommodation is “reasonable” and thus must be accommodated, verses an “unreasonable” one that can be rejected by the employer, is often the subject of costly legal challenges. A recent decision from the New Jersey Appellate Division shows how employers who implement an ongoing “interactive process” as well as offer reasonable accommodations along the way can successfully defend claims of disability discrimination.

The Facts:

Plaintiff Robin Thomas was employed by the New Jersey Department of Corrections (DOC) as a secretarial assistant, a role requiring interaction with co-workers and access to her unit’s files. In 2000, Thomas was diagnosed with an autoimmune disease that was adversely affected by cold and requested a work area without direct exposure to air conditioning. The DOC accommodated that request.