Federal Attack on Non-Competes Likely Another Casualty of Election

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As our readers are aware, employers can expect that the Trump administration will usher in a plethora of changes in terms of federal employment law policy and enforcement. One particular area in which the new administration may do an about-face is its position on enforcement of non-competition agreements. Continue reading this entry

Joint Employer Rule: Is Guidance on the Way?

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As we have previously discussed, in its 2015 “Browning Ferris” decision, the National Labor Relations Board (NLRB) set a new standard for determining whether two entities are joint employers under federal labor law.  Since then, employers have faced a rocky road in trying to understand the implications of this standard.  Long-awaited guidance may finally be on the way.

The NLRB, Browning-Ferris, and other interested parties have just finished filing briefs relating to NLRB decisions announcing and applying the new joint employer standard. This is a critical case with potentially widespread impact for companies, including key decisions about how to structure their relationships with staffing companies, franchisees, vendors, and more. The matter is now in the hands of a District of Columbia federal court that will hopefully bring clarity to a very muddled issue. Continue reading this entry

The “Persuader Rule” Permanently Enjoined

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As we have previously reported, in March of 2016, the Department of Labor (“DOL”) issued a reinterpretation of the Persuader Activities Rule (The “Revised Rule”). This Revised Rule required that:

  1. employers must annually report agreements that have the object of dissuading employees from supporting unions (“persuader activities agreements”);
  2. consultants must report such persuader activities agreements within 30 days; and
  3. consultants who enter persuader activities agreements must report payments from employers for all “labor relations advice and services.” (the “LM-21 Report”).

This changed a long-standing rule for what qualified as “persuader activities.” Previously, if the consultant had direct contact with the target employees, it was acting as a “persuader” and the employer and the consultant had to file reports. However, if the consultant had no direct contact with employees, it fell under an exemption that covered the “advice” exception.

On June 27, 2016, the Revised Rule was temporarily enjoined by the Honorable Sam R. Cummings, a federal judge in Lubbock, Texas. That action stopped the Rule’s enforcement nationwide, pending further court proceedings.

Today, we have learned that the same judge has determined that the Rule is unlawful. He has issued a “permanent injunction” which has the effect of indefinitely preventing the DOL from enforcing the Revised Rule nationwide. It is likely that the DOL will at least consider appealing this decision to the federal court of appeal that has jurisdiction. However, intervening political developments stemming from the forthcoming transition to the Trump administration may cause the DOL to question the value of such an appeal.

There appears little doubt that the March 2016 “reinterpretation” was a political decision, intended by the current administration to aid unions attempting to organize employees. With the election of a new President and the appointment of a new Secretary of Labor who will almost certainly be more aligned with employer interests, we believe there is a strong likelihood that, at least, the March 2016 “reinterpretation” would be withdrawn and the DOL would revert to its prior interpretation.

Thus, the DOL may well determine that continuing to try and enforce this Revised Rule would be futile. Any greater relief, such as the abolition of the original “Persuader Rule” entirely, would require an act of Congress and, in the short term at least, is very unlikely.

We will keep you updated as to any further developments.

Six Tips to Help HR Professionals Avoid Criminal Antitrust Liability Under New DOJ/FTC Guidance

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On October 20, the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) jointly issued antitrust guidance for human resources professionals. The agencies also released a list of high-level red flags for the unwary.

The DOJ and FTC’s guidance reminds HR professionals to avoid entering into agreements concerning wages, employee benefits, or terms of employment with their competitors. The guidance also directs competing employers to steer clear of “no poach” agreements except in limited circumstances, such as in connection with the sale of a business. Continue reading this entry

What Will Happen When the Smoke Clears? Post-Election HR Strategies for 2017 and Beyond

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The long and contentious presidential campaign is over.  So, now what?  What does President-elect Trump’s victory mean for employers?

To explore this question, Foley and Lardner LLP’s Labor & Employment Practice group hosted a webinar titled “What Will Happen When the Smoke Clears? HR Strategies for 2017 and Beyond” on November 10, 2016.  The team who offered their insights included Foley attorneys Mark Neuberger, Dabney Ware, Jesse Panuccio (who recently joined Foley after serving as the executive director of the Florida Department of Economic Opportunity), Daniel Kaplan, Krista Cabrera, Donald Schroeder, Carmen Couden, and Elgie Sims, Jr. (who, in addition to being a Foley attorney, was reelected to his seat in the Illinois House of Representatives).

While the team offered their predictions, if this election cycle is any indication, predictions offer no guarantee of future results. Therefore, unless and until some official action is taken, employers should abide by all their current legal obligations. Continue reading this entry