Many employers use rounding methods to adjust the hours that an employee works to the nearest time increment, such as every five or ten minutes.  The California Supreme Court has ruled, however, that this rounding practice is impermissible at the meal period.  Equally as troubling for employers, the Court also held that time records showing a noncompliant meal period raise a “rebuttable presumption” of meal period violations.

Continue Reading California Supreme Court Declares Employers Cannot Round Workers’ Time At The Meal Period And Records Can Raise Rebuttable Presumption Of Violations

In January 2021, New York City amended the Fair Chance Act to expand protections for both applicants and employees with criminal histories.  The amendments take effect July 29, 2021, adding additional protections for workers in the state.  Prior to the amendment, NYC’s Fair Chance Act prohibited employers from making an inquiry about an applicants’ criminal conviction records until after a conditional offer of employment is extended.  Then, an employer was required to balance a variety of factors to determine job-relatedness of the conviction.

Continue Reading New York City Expands Protections For Applicants and Employees With Criminal Histories

Title III of the Americans with Disabilities Act of 1990 (“Title III”) prohibits discrimination on the basis of disability in public accommodations, requiring that individuals with a disability be offered the “full and equal enjoyment . . . of any place of public accommodation.”  42 U.S.C. § 12182(a).  As we previously discussed, the 30-year-old statute does not directly address whether “places of public accommodation” include websites, mobile applications, and other emerging web-based applications and technologies and, therefore, does not provide a standard for ensuring accessibility for web-based accommodations.

Continue Reading Looking Ahead to Potential Developments in Online Accessibility Law

HuntonAK Labor and Employment Partners Bob Dumbacher and Kurt Powell have been recognized in the most recent publication of Georgia Super Lawyers 2021.

Super Lawyers acknowledges outstanding practice group lawyers “who have attained a high-degree of peer recognition and professional achievement.”

Bob and Kurt were both recently recognized by Benchmark Litigation as Labor and Employment Stars, Georgia, 2020.

Read the Firm press releases for information.

Congratulations!

With the ushering in of a new administration, several changes have quickly taken place at the National Labor Relations Board (NLRB).

Within hours of taking office, the Biden administration removed Trump appointee NLRB General Counsel Peter Robb and replaced him with interim General Counsel Peter Ohr.  (Ohr may only serve as acting General Counsel for 40 days, per the National Labor Relations Act, unless the administration submits a nomination to the Senate.)  At least one employer has already sought the dismissal of an unfair labor practice charge arguing that Ohr lacks authority to prosecute the case because Robb was unlawfully removed prior to the expiration of his term.

Continue Reading Changes Afoot at the NLRB Under the New Administration

In a recent post, we wrote about a final rule issued by the Department of Labor (DOL) during the last days of the Trump administration addressing the appropriate test for classifying independent contractors under the FLSA. In the post, we noted that the future of the rule was in question because it was not set to go into effect until March 8, 2021. This delayed implementation provided an opportunity for the incoming Biden administration to freeze or withdraw the rule.

Continue Reading DOL Freezes Rule on Independent Contractor Classification Test under the FLSA and Withdraws Several Opinion Letters

Since taking office, President Biden has issued Executive Orders covering topics from climate change to mask mandates.  Some of these new Executive Orders are aimed at eliminating discrimination and promoting equity at the federal level.  These directives will likely result in new requirements for private sector companies that are government contractors or subcontractors, and could require them to revise practices and policies in order to keep, or procure new, government contracts.

Continue Reading Executive Orders Impact Federal Agencies and Government Contractors

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 requiring or requesting that D.C. employees execute a non-compete agreement, with a few exceptions for unpaid volunteers, babysitters, and certain licensed physicians.

The law is not retroactive, and will go into effect on or about March 19, 2021 (assuming that it passes the 30-day Congressional review period).  Therefore, non-compete agreements already in effect on the Act’s effective date could potentially remain enforceable if they are otherwise lawful under common law principles.

The Act Prohibits Nearly All Non-Compete Restrictions

The Act defines a non-compete as a provision that “prohibits the employee from being simultaneously or subsequently employed by another person, performing work or providing services to pay for another person, or operating the employee’s own business.”  Importantly, the Act not only prohibits employers from restricting an employee from working for a competitor after their employment, but also from restricting an employee’s competitive activities while employed by the employer.  Consequently, the Act appears to allow an employee to hold another job during their employment, even a job with a direct competitor.  As such, D.C. employers will no longer be able to enforce policies prohibiting moonlighting or other outside employment.

However, the Act excludes from its prohibitions confidentiality agreements that protect an employer’s trade secrets, customer lists, or other proprietary or confidential information, in addition to sale or purchase agreements where the seller agrees not to compete with the buyer.  The Act does not specifically address any other type of restrictive covenants, such as non-solicitation provisions.  Arguably, such non-solicitation provisions do not fall within the Act’s definition of a prohibited “non-compete provision” and may still be permissible.  Employers should continue to monitor this issue to see how courts and D.C. administrative agencies interpret the Act.

The Act also prohibits an employer from retaliating or threatening to retaliate against an employee who refuses to agree or fails to comply with an unlawful non-compete provision or workplace policy prohibiting simultaneous employment.  Employers are further prohibited from retaliating against an employee who complains about a non-compete provision that the employee reasonably believes to be unlawful, or who requests a copy of the employer-mandated written notice.

Notice Requirements

The Act requires all D.C. employers (including employers not using non-compete agreements) to provide written notice of the Act to employees, using the following specific language:

“No employer operating in the District of Columbia may request or require any employee working in the District of Columbia to agree to a non-compete policy or agreement, in accordance with the Ban on Non-Compete Agreements Amendment Act of 2020.”

Employers must provide this notice on three separate occasions:

(1) ninety calendar days after the Act becomes effective;

(2) seven calendar days after an individual becomes an employee; and,

(3) fourteen calendar days after the employer receives a written request for notice from the employee.

The Act does not contain any separate posting requirement.

Enforcement Mechanisms

The Act provides a private right of action and an administrative complaint procedure to resolve alleged violations of the Act.  Penalties may range from $500 to $3,000 per affected employee, depending on the violation.  Employers may also be subject to penalties ranging from $350 to $1,000 per violation of the non-compete provision, and more than $1,000 per violation of the anti-retaliation provision.  Finally, an employer that violates the non-compete prohibition, unlawfully bans an employee from engaging in simultaneous employment, or fails to provide the mandatory written notice must pay each employee subjected to the violation of the Act a penalty of between $500 and $1,000.  This latter provision incentivizes employees to report violations.

Employer Takeaways

In light of the Act, employers should do the following:

  • Decide whether to require certain employees to execute non-competes before the Act becomes effective;
  • Determine which of its positions would normally require an employee to execute non-compete agreements.  Instead of requiring any applicants or prospective employees in those positions to execute a non-compete, consider other types of restrictive covenant to meet the employer’s goals (e.g., the protection of its trade secrets and other confidential or proprietary information);
  • Review existing policies, offer letters, restrictive covenant agreements related to outside employment (i.e., moonlighting) and revise them to account for the Act’s requirements;
  • Ensure that other workplace policies and procedures adequately protect the company from violations of non-disclosure or confidentiality obligations.
  • Review existing onboarding and other notice procedures to ensure compliance with the Act’s notice requirements;
  • Consult with counsel to determine a plan for future agreements and policies.

Last month, the Seventh Circuit Court of Appeals rejected a proposed class of thirty-seven employees for failure to satisfy Federal Rule of Civil Procedure 23’s numerosity requirement.

“Much ink has been spilled” over the requirements of Rule 23, the Seventh Circuit noted.  But only a small share of those cases concern the numerosity requirement.  Most opinions deal with commonality or typicality.  Recognizing this paucity, the court took occasion to outline the parameters of the numerosity factor. The resulting opinion is a useful guide to parties engaged in smaller class actions or class actions where the commonality or typicality requirements may only apply to a smaller group of workers.

Continue Reading Numerosity and Rule 23: It’s Not (Only) About the Numbers

For over 30 years, most district courts throughout the country have used a two-step conditional certification process to govern certification of collective actions under the Fair Labor Standards Act (FLSA).  But in its recent and game-changing opinion, Swales v. KLLM Transport Services, LLC, the Fifth Circuit rejected that two-step process and laid out a stricter framework for FLSA collective actions.

Continue Reading Fifth Circuit Rejects Two-Step FLSA Certification Process