Don't Expect Noncompete Relief Until Next Year Says FTC

 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 remedies. Depending on your state law, there are defenses to noncompete agreements.

While Florida is one of the most anti-employee states in the nation, both federal and Florida antitrust law require that employers have a legitimate interest other than preventing competition in order to enforce a noncompete agreement. Absent a legitimate interest, the agreement violates antitrust laws. Some other states have additional defenses to enforcement.

When in doubt about your noncompete agreement, get some advice from an employee-side employment lawyer in your state.

Did The Supreme Court Just Make It Legal To Discriminate?

As I'm sure you've heard unless you've been in outer space for the past couple weeks, the Supreme Court ruled that a person who thinks she might want to have a web designer business (but who has never actually designed a website in said business) could refuse to design a website for a gay marriage that she was never actually asked to design. SMH. Let's put aside the issue of whether this should have been a case in the first place, and deal with the question that is on everyone's mind: 

Is it legal to discriminate now?

Answer: Well, no. Not really. But maybe. Sigh.

The actual ruling says this: "Held: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees." Seems not so bad, right? And it has nothing to do with hiring and firing, so it has no express immediate effect on employment discrimination laws. But the decision does open the door to future interpretations that are pretty bad.

The interesting part of this ruling is that it isn't based on religion. The Court didn't say people can use their religion to discriminate. At least not yet. Well, at least not in this particular opinion. Instead, they based it on free speech.

So people are asking me, can I post a sign on my business that says, "We don't hire bigots or homophobes"? The answer is probably, but you probably could have done that before this decision. What you (probably) can't do is post a sign that says, "We don't hire evangelicals." And in places like my county which prohibits political affiliation discrimination, you (probably) can't post a sign saying, "We don't hire Republicans."

The fake web designer in this case swore up and down that she would accept business from LGBTQ customers, and that her only problem was with gay marriage websites. Do we believe her? Heck no. She doesn't even have an active web designer business yet, and the only alleged customer who asked about a gay marriage site is straight and says it never happened. But still. The Court focused not on discrimination against LGBTQ people, but on this: "Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction." They also focused on the fact that her alleged profession is creative one that is "expressive in nature."

So let's look into the future and assume she actually will eventually have a real website design business. Let's assume she will be so busy she needs staff. What will happen if a gay website designer who is married to a person of the same sex applies? Can she say that the business reflects her personal expression and her sincere beliefs prohibit her from endorsing gay marriage  by hiring such a person? Probably a stretch, but I can see it happening. Can she hire the person but say that her sincere beliefs prohibit her from providing insurance to his spouse? Very possible (see the Hobby Lobby case).

How will this case apply to employment law in the future? Well, I have some strong suspicions about how evangelical employers will try to apply it. But what about other employers? What if your beliefs are similar to those of The Chosen? What if your sincere belief is that those who deliberately misgender must, forever after or until they relent, be called by the opposite gender, and those who refuse to use non-binary pronouns, must forever after or until they relent, be referred to as they/them. Can you ask in interviews about the person's beliefs on pronouns and misgendering? Maybe. If so, can you automatically disqualify anyone who says their religion requires the opposite? Hmm. Unclear. If you hire them when they admit that they deliberately misgender due to their sincere beliefs, when you forever call them by the gender opposite that on their birth certificate can they claim sex or religious discrimination? Possibly.

As you can tell, I have lots of questions about this case and how it will apply to employment law in the future. Questions such as:

• Can a man whose sincere belief says women belong in the home now refuse to work with women?
• Can a woman whose sincere belief says that Black people are under the "Curse of Ham" and are thus inferior pay Black employees less than white ones? (This excuse was used to justify slavery).
• Can an employer whose sincere belief is that women are suited only to secretarial work refuse to hire female truck drivers?

This "sincere belief" stuff cuts both ways.

• Can an employer whose sincere belief is that anyone who voted for Trump is ethically deficient refuse to hire Republicans?
• Can a woman whose sincere belief is that anyone who believes that abortion should not be allowed in cases of rape, incest, and for the health of the mother is unfit to lead anyone refuse to grant a promotion to Catholics?
• Can a man whose sincere belief is that anyone who supports book banning is unfit to teach refuse to hire evangelical teachers?

I think these questions will be answered soon. The answer under the law a year ago is no to all of the above. But now, apparently anything goes. So hold onto your hats and just assume things will get crazy before they settle down.

Right now, employment discrimination is still mostly illegal. But that could change. Be ready.

NLRB Says Employee Outbursts Regarding Working Conditions Are Protected

The Biden NLRB recently overturned a Trump-era case that allowed employers way too much discretion to fire employees who engage in alleged unprofessional behavior when discussing working conditions. The case involved a union activist who was fired. The behavior that resulted in the termination was described by the Administrative Law Judge as follows:

Colone spoke persistently and argumentatively,and made a brusque, impolite statement to an employee who was leaving the meeting that he should “just go ahead and leave” be-cause he wasnot needed; he also, upon Dean refusing to provide him with the paperwork related to the new overtime policy, told Dean that he was not doing his job.

 The NLRB said the harsher standard the GOP Board set was erroneous:

The Board has long held, with uniform judicial approval, that causation is not at issue where an employer defends a disciplinary action based on an employee's alleged misconduct in the course of union activity, and the Board determines that the misconduct was not sufficiently egregious to deprive the employee of the protection of the Act. Everyone agrees that the disciplinary action was motivated by conduct that the Board—in fulfilling its statutory responsibility to determine the scope of the Act's protection—has found to be protected. That the employer labeled the conduct abusive, disloyal, uncivil, or insubordinate does not bring its motive into question. Ozburn-Hessey Logistics, LLC, 366 NLRB No. 177, slip op. at 5 (2018), enfd. in relevant part 803 Fed. Appx. 876, 882-883 (6th Cir. 2020); Roemer Industries, Inc., 362 NLRB 828, 834 fn. 15 (2015) (explaining that where an employer defends disciplinary action based on an employee’s misconduct in the course of protected union activity, and the misconduct was not egregious enough to remove the protections of the Act, “the 8(a)(3) violation is established because the antiunion motive is not in dispute--the protected union conduct was the motive for the discipline”), enfd. 688 Fed. Appx. 340 (6th Cir. 2017). 

 The NLRB cited as an example of conduct that is protected:

A good example is the Eighth Circuit’s picket-line misconduct decision in Cooper Tire & Rubber Co. v. NLRB, 866 F.3d 885 (8th Cir. 2017), a case the General Motors Board simply ignored. In Cooper Tire & Rubber, the court enforced the Board’s order requiring reinstatement of a striker who had directed racist taunts at a van carrying replacement workers that had just crossed the picket line. It agreed with the Board’s application of the Clear Pine Mouldings standard and rejected the employer’s argument that Wright Line should apply. 866 F.3d at 889–890. It also rejected the argument that the Board’s order conflicted with the employer’s duty under Title VII, 42 U.S.C. §§ 2000e, et seq. Id. at 891- 892. The court explained that the striker’s picket-line jibes—racially offensive, stereotyped comments about food —did not create a hostile work environment, nor did Title VII create any legal obligation to fire the striker. Id. at 892.41 The Eighth Circuit’s decision is not anomalous.

The Supreme Court has said repeatedly that Title VII is not “a general civility code for the American workplace.” As the Court has explained, “offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” There is no obvious or inevitable conflict, then, between the Board’s approach as reflected in the setting-specific standards and Federal antidiscrimination law.

I can't tell you how often the "general civility code" language has been thrown at me in sexual and racial harassment cases, so it's good to see the NLRB saying what's good for the goose is good for the gander. You don't want a general civility code? Then you can't claim it when people are protesting or discussing working conditions.

I generally suggest that employees remain professional when discussing working conditions with management and coworkers. But the NLRB has made it much more difficult for employers to fire employees who are advocating for better working conditions. 

See? Elections matter. Vote well in 2024.

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What Rights Do Workers Have During Heavy Wildfire Smoke?

It looks like wildfire smoke is becoming a fact of life for many Americans. What rights do you have if your workplace is in one of the dangerously smoky areas? 

OSHA actually has a web page about wildfires. It says, among other things, “Each employer is responsible for the safety and health of its workers and for providing a safe and healthful workplace for its workers. Employers are required to protect workers from the anticipated hazards associated with the response and recovery operations for wildfires that workers are likely to conduct.”

They have a detailed Response page that includes links to requirements for many types of hazards. That page includes a link to a California publication on smoke.

 That publication discusses what steps can be taken by employers to protect both indoor and outdoor workers. For outdoor workers:

Options for limiting workers’ smoke exposure include postponing or shortening time spent outdoors; focusing on only performing high priority tasks; relocating workers or rescheduling work tasks to smoke-free or less smoky areas or times of the day; reducing outdoor workers’ physical activity and exertion levels; encouraging and ensuring workers take frequent breaks inside cleaner air spaces such as enclosed structures or vehicles with recirculating air; and encouraging and using air cleaners with HEPA (or other protective) filters in indoor working areas to reduce overall smoke exposure. In some cases, the use of particulate respirators should be considered to protect workers who cannot implement the exposure reduction recommendations listed above when performing outdoor work (see additional information below). Workers involved in post-fire cleanup activities clearly must be protected from exposure to ash and all other hazards (see sections pertaining to after-fire hazards) by using a range of control methods (e.g., dust suppression, personal protective equipment). When other measures are not sufficient to control a respiratory hazard, OSHA requires employers to provide respirators that are appropriate for the hazard and work situation. An OSHA-compliant respirator program names a qualified person responsible for administering the program and describes procedures for respirator selection, medical evaluation for safe respirator use, fit testing for tightfitting respirators, training on topics such as how to use and maintain respirators, and program evaluation.

But the publication also states: “The Occupational Safety and Health Administration (OSHA) is the regulatory entity for employee health and safety but, in about half of the states, a federal OSHA-approved state OSHA program regulates non-federal workplaces. There are currently no occupational standards specifically for wildfire smoke, except in California.”

For indoor workers, they state: “HVAC systems should be operated continuously while occupied in order to provide the minimum quantity of outdoor air for ventilation, as required by the standards or building codes to which the building was designed. For many office buildings, this is often in the range of 15–20 cubic feet per minute (cfm) per person, although it could be less in older buildings.” They provide details on what steps need to be taken to inspect and repair HVAC systems to protect from smoke. They provide additional information for protection of indoor workers: “In addition to assessing and if necessary modifying the function of the HVAC system, employers are encouraged to take other reasonable steps to reduce employee exposure to smoke, including alternate work assignments or relocation and telecommuting. Some buildings rely on open windows, doors, and vents for outdoor air, and some may have mechanical ventilation systems that lack a functioning filtration system to remove airborne particles. In these cases, the employees may need to be relocated to a safer location. Employees with asthma, other respiratory diseases, or cardiovascular diseases, should be advised to consult their physician for appropriate measures to minimize health risks. Respirators, such as N95s and other filtering facepiece respirators, may provide additional protection to some employees against environmental smoke. Employees whose work assignments require the use of respirators must be included in a respiratory protection program (including training, medical evaluations, and fit testing).”

New York, where wildfire smoke recently wreaked havoc, does have a Division of Safety and Health as part of their Department of Labor but I’m not finding anything specific relating to smoke hazards. They do have a website here: https://dol.ny.gov/safety-and-health

The bottom line is that it looks like New York and many other states don’t have specific safety standards on outdoor smoke, but they probably should. Employees nationwide are covered by OSHA. Here's what OSHA says generally about workplace safety:

You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.

Most of the OSHA-specific standards regarding smoke involve workplace fires. But employers need to protect employees from hazardous conditions, and that includes wildfire smoke. Employers need to take sensible precautions to protect employees. For employees who have medical conditions that place them at high risk for smoke exposure, they need to consider measures such as remote work, alternate assignments, relocation, respirators, and filters. For indoor employees who aren’t particularly vulnerable, employers still need to protect indoor workers with functional HVAC systems, filtration, PPE if necessary, and relocation or remote work as necessary. For outdoor workers, employers should be providing respirators, frequent breaks into clean air spaces, and any other protective equipment necessary.

If you feel you are being put in unsafe conditions, notify OSHA and ask them to inspect the workplace. OSHA has a page about when you can refuse to perform work. It says:

If you believe working conditions are unsafe or unhealthful, we recommend that you bring the conditions to your employer's attention, if possible.

You may file a complaint with OSHA concerning a hazardous working condition at any time. However, you should not leave the worksite merely because you have filed a complaint. If the condition clearly presents a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, you have brought the condition to the attention of your employer, you may have a legal right to refuse to work in a situation in which you would be exposed to the hazard. (OSHA cannot enforce union contracts that give employees the right to refuse to work.)

Your right to refuse to do a task is protected if all of the following conditions are met:

§  Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so; and

§  You refused to work in "good faith." This means that you must genuinely believe that an imminent danger exists; and

§  A reasonable person would agree that there is a real danger of death or serious injury; and

§  There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

You should take the following steps:

§  Ask your employer to correct the hazard, or to assign other work;

§  Tell your employer that you won't perform the work unless and until the hazard is corrected; and

§  Remain at the worksite until ordered to leave by your employer.

If your employer retaliates against you for refusing to perform the dangerous work, contact OSHA immediately. Complaints of retaliation must be made to OSHA within 30 days of the alleged reprisal. To contact OSHA call 1-800-321-OSHA (6742) and ask to be connected to your closest area office. No form is required to file a discrimination complaint, but you must call OSHA.

In a situation involving wildfire smoke, I would expect that very few situations outside the range of the actual fire rise to the level of presenting a risk of death or serious physical harm unless you have an underlying health condition, so I’d recommend that most workers follow the steps OSHA requires: Bring it to the employer’s attention. If they don’t fix it or provide appropriate protective equipment or otherwise eliminate the danger, file a complaint with OSHA and ask for an inspection. 

Only if the work is so dangerous that you are risking serious physical harm should you refuse to do the work. 

If your employer retaliates for reporting them to OSHA, report the retaliation to OSHA or contact an employee-side employment lawyer in your state.

New Laws Protect Pregnant and Nursing Workers

Two new federal laws that President Biden signed on December 29, 2022 will provide more protection for pregnant and nursing workers. While pregnancy discrimination is already illegal, these laws provide additional protection. 

Pregnant Workers Fairness Act: This law goes into effect on June 27, 2023 and applies to discrimination claims after that date. This law makes clear that employers with at least 15 employees must provide reasonable accommodations to pregnant workers unless providing the accommodation would cause an undue hardship on the employer. This makes pregnancy accommodations similar to disability accommodations, but pregnant workers only have to prove pregnancy, not a disability. The requirement of accommodation is triggered by a "known limitation" of pregnancy. 

This law clarifies the Pregnancy Discrimination Act, which didn't mention accommodations. The Supreme Court held in 2015 that employers must grant accommodations to pregnant employees if they provide such accommodations to other similarly-situated non-pregnant employees. The cases have been all over the place on this, so this new law makes the requirement very clear.

Cases under this law are handled the same way Title VII claims are handled.

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act): This law amends the Fair Labor Standards Act to require employers to provide reasonable break times to all nursing employees, and a private place to express breast milk. This law came into effect on December 29, 2022. Employers with less than 50 employees will be exempt if compliance creates an undue hardship. Employees who work remotely have the same entitlement to breaks as other employees and must be able to do so without being observed by employers. 

The Fair Labor Standards Act already provided for break time and private space for most employees, but this law expands that protection to employees who were considered exempt from overtime and remote workers. 

Breaks are only paid if they are less than 20 minutes or if the worker is not completely relieved from duty during the break. 

Employers who break this law or who retaliate can be liable for lost wages, liquidated damages, compensatory damages, other economic losses, and even punitive damages.

See what happens when you vote well? Keep voting well, and keep fighting for employee rights.

Can My Employer Trash Me In Job References?

I constantly hear comments like, "I know my employer is only legally allowed to give out my dates of employment and job title." The people who say this are so sure this is the law. They're also wrong, wrong, wrong. They even get angry when I tell them they're wrong.

Here are six things you need to know about job references:

1. Not one single federal law exists limiting what employers can say in references. I know you think you're sure about this law existing. You probably heard it from a friend or on TV. There is no such law.
2. No state prohibits employers from giving out truthful information about an employee's job performance. There is not a single state law that I've found (and I'm sure my employment lawyer colleagues around the country will chime in if they know of one) saying that employers can only give out dates of employment and job title. Discussing job performance is allowed.
3. Most states don't require employers to give any reference at all. Some vindictive employers will simply refuse to return calls from prospective employers. Employees who have to undergo background checks may be disqualified from a job just because a former employer refused to speak. While some states require employers to give out specific limited information, most require nothing at all from former employers. This can also be a problem if you need to apply for unemployment or public assistance.
4. Some states require employers to give former employees a letter with specific information (varies from state to state). These states are California, Delaware, Indiana, Kansas, Maine, Minnesota, Missouri, Montana, Nebraska, Nevada, Oklahoma, Texas and Washington. You can check out each state's requirements here.
5. Most states give employers some immunity from slander and libel suits. Each state's immunity is a little different, but employers in most states get a lot of leeway in what they can say about former employees.
6. Truth is always a defense to a slander or libel suit. Even in states without immunity, if your employer gives out truthful information, you won't be able to sue for slander or libel. Truth is a defense. If your employer makes false statements of fact (as opposed to opinion), such as falsely saying you stole money or didn't meet quota, then you might have a defamation case against them.

When you leave, it's important to figure out what your former employer is going to say about you to potential employers before you start interviewing. Here are some things you can do to find out.

Ask: Some employers will tell you, if you ask them, what they will say to potential employers in references. Find out if, for instance, they'll say you're eligible for rehire.

Put it in an agreement: If you're presented with a severance agreement, one important point to negotiate will be neutral references. A contract where the employer agrees to only give out dates of employment and job title can be enforced.

Check the union contract: If you have a union, many collective bargaining agreements include a provision that the employer can only give out dates of employment and job title.

Look at your handbook: Many companies have a neutral reference policy. Some have a phone number or person where you're supposed to direct references. A company with a neutral reference policy will usually follow it. They have it for a reason. If you find out your former supervisor is violating the policy, complain to HR or the supervisor's boss. They may get in trouble, and will almost certainly be ordered to cut it out.

Reference-checking company: There are companies that will pretend to be potential employers and check references for you. They can give you a report about what your former employer is saying. If they're saying something untrue, you may want to get a lawyer to write a cease and desist letter for you. If they're breaching a non-disparagement agreement, you might be able to sue for breach of contract.

If you think your former employer is defaming you, or if they are breaching a non-disparagement agreement that they aren't allowed to say negative things about you, contact an employee-side employment lawyer in your state about your rights.

DOL's New Rule On Classification of Employees Vs. Contractors Will Benefit Workers

 Last year, the Department of Labor announced a new proposed rule about how workers are classified as employees or independent contractors. The comments period has ended, so we can expect the new rule to be implemented any time. 

DOL noted, "As explained below, as used in this proposal, the term “independent contractor” refers to workers who, as a matter of economic reality, are not economically dependent on their employer for work and are in business for themselves." And that is exactly how it should be. Instead, employers are misclassifying employees as contractors to avoid the application of employment laws and to avoid paying employment taxes.

The new rule would actually revert to an older rule that has existed in interpreting the Fair Labor Standards Act. "The ultimate inquiry is whether, as a matter of economic reality, the worker is either economically dependent on the employer for work (and is thus an employee) or is in business for themself (and is thus an independent contractor). To answer this ultimate inquiry of economic dependence, the courts and the Department have historically conducted a totality-of-the-circumstances analysis, considering multiple factors to determine whether a worker is an employee or an independent contractor under the FLSA."

This new rule will benefit workers in several ways:

Greater protection under labor laws: Workers who are classified as employees are entitled to greater protection under labor laws. For example, they are protected by the National Labor Relations Act, which gives employees the right to form and join a union, the Fair Labor Standards Act, which sets the minimum wage and overtime standards, state and federal discrimination laws, and whistleblower laws.

Better pay and benefits: Workers who are classified as employees are typically eligible for a wider range of benefits and may be entitled to a higher minimum wage. For example, employees are typically entitled to overtime pay, paid time off, and health insurance, while independent contractors are not.

Improved working conditions: Workers who are classified as employees are entitled to a safe and healthy workplace. This includes protection from workplace hazards and discrimination. Employers are also required to provide reasonable accommodations for employees with disabilities. Employees can also unionize to negotiate for better working conditions. Contractors cannot.

No double taxation: Independent contractors have to pay double the amount of social security and medicare taxes. Employers pay half of these employment taxes for employees. 

Overall, the Department of Labor's new rule on worker classification benefits workers by providing increased job security, better pay and benefits, improved working conditions, greater protection under labor laws, and clarity for both workers and employers. By ensuring that workers are classified correctly, the rule helps to ensure that workers receive the benefits and protections they deserve.

If you think you are misclassified as a contractor, contact an employee-side employment lawyer in your state. You also can report your employer to the Department of Labor and the IRS. They may additionally be liable under state wage theft laws.