Hunton Employment & Labor Perspectives

On January 5, 2023, the Federal Trade Commission (“FTC”) issued a notice of proposed rulemaking (“NPRM”) that would “provide that it is an unfair method of competition – and therefore a violation of Section 5 [of the FTC Act] – for an employer to enter into or attempt to enter into a non-compete clause with a worker; [or to] maintain with a worker a non-compete clause . . .”  If this rule becomes final, it would effectively prohibit employers from entering into non-compete agreements—as broadly defined by the proposed rule—with their workers. 

On December 7, 2022, President Joe Biden signed the Speak Out Act (the “Act”), which limits the enforceability of pre-dispute non-disclosure and non-disparagement clauses covering sexual assault and sexual harassment disputes. The bipartisan Act was previously passed by the Senate and the House of Representatives by an overwhelming majority.

Last month, Washington, D.C. Mayor Muriel Bowser signed the Ban On Non-Compete Agreements Amendment Act of 2020 (“the Act”), which becomes effective next week.  This law is a statutory ban on non-compete agreements that has the strength of similar bans in California, North Dakota, and Oklahoma.

The Act applies to all D.C. private employers and applies broadly to most employees who perform work in D.C. or whom a prospective employer reasonably anticipates will perform work in D.C.  The law does not have a minimum salary threshold.  Under the Act, employers are prohibited from ...

On December 6, 2019, a coalition of both national and state business organizations and trade associations filed a Complaint in the U.S. District Court for the Eastern District of California.  The lawsuit seeks both a preliminary and permanent injunction against implementation and enforcement of the recently enacted California law that makes it unlawful for California employers to require employees to sign arbitration agreements, under certain circumstances.

Earlier this year, we wrote about a proposed bill in California, AB 51, which would prevent employers from requiring their employees to bring all employment-related claims, including discrimination, harassment, retaliation, and wage and hour claims, in arbitration instead of state or federal court.  Earlier this month, Governor Newsom signed AB 51 into law.

In recent years, federal and state law enforcement authorities have subjected “no-poach” agreements to increased scrutiny. Recent enforcement actions demonstrate the risk of criminal penalties and civil damages for using such agreements. In this video, Hunton Andrews Kurth partners Emily Burkhardt Vicente and Torsten Kracht discuss recent developments concerning the use of “no-poach” agreements, and how these developments may affect your company’s business.

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Originally published in The Business Journals, Jayde Brown and Alan Marcius discuss proactive steps small businesses can take to avoid common employment-related legal problems.  Read more here. 

California has long been considered one of the most – if not the most – protective states of employee rights.  This continues to ring true, as the legislature has proposed another law aimed at prohibiting employers from requiring employees to sign mandatory arbitration agreements as a condition of employment.   In essence, Assembly Bill 51 (AB 51), would prevent employers from requiring their employees to bring all employment related claims, including discrimination, harassment, retaliation, and wage and hour claims, in arbitration instead of state or federal court.

We have reported on several Board decisions issued by a new Republican majority in the final days of 2017, but questions remain as to what issues the Board will address next to scale back on Obama-era precedent.  In recent weeks, Republican Board Members have provided some hints in a pair of footnotes in two unpublished decisions.

Employers should be aware of a recent ruling by the U.S. Court of Appeals for the District of Columbia Circuit that overly broad confidentiality and nondisparagement policies violate the National Labor Relations Act (“NLRA”).  The case, Quicken Loans v. NLRB, 2016 U.S. App. LEXIS 13778 (D.C. Cir.), involved an employment policy which prohibited employees from using or disclosing a broad range of personnel information without Quicken's prior written consent or to criticize publicly the company and its management. The National Labor Relations Board (“NLRB” or “Board”) determined that those rules ran afoul of Section 7 of the NLRA because they “unreasonably burden the employees’ ability to discuss legitimate employment matters, to protest employer practices, and to organize.” Quicken then appealed the NLRB’s decision to the D.C. Circuit Court of Appeals.

Yesterday, John Smith, the president of ABC Bank, announced to the board of directors that he intended to resign to go work for XYZ Bank, a local competitor. Smith also intends to take some of the bank’s most important customers, and several top officers with him to XYZ Bank. Upset and panicked, the chair of the board contacted the bank’s employment attorney to determine what could be done to stop the president from leaving and taking customers and employees with him. “Send me a copy of John’s employment agreement,” the lawyer said. “Employment agreement? The board did not ...