Employment/Labor Law (CLE)

According to the Fair Labor Standards Act (FLSA), employers are responsible for ensuring that their employees are properly classified and compensated. The U.S. Department of Labor’s recent changes to regulations governing overtime-exempt status, independent contractor classification, and tip credit rule further expands wage and hour laws. Failure to comply with these provisions can result in serious consequences, such as costly fines, litigation, and reputational damage.

A non-compete agreement is crucial for protecting a company’s trade secrets and other valuable assets from employees who leave the business. However, some organizations fail to include legitimate restrictions for employees' conduct even after their employment ended, exposing them to risks. More so, the potential for misappropriation or theft of trade secrets.  This underscores the need for businesses and their counsel to be well-versed in drafting sound non-compete agreements and be abreast of emerging developments to be able to structure preventive measures and mitigate potential risks.

Worker misclassification has perpetually posed serious challenges for many businesses and companies alike.

Restrictive covenants are enforced under the standards of reasonableness, recognizing the balance between protection and free competition.

The past two years have seen the undeniable growth of collective bargaining agreements (CBA) in both the public and private sector workplace.

Over the past years, multiple states have enacted and amended laws against unfair competition. However, the push to widen the scope of banning restrictive covenants and non-compete agreements raises concerns among employers, especially in protecting important company assets and trade secrets.

Regulatory uptakes on anti-competitive restrictions in labor markets is expected to ramp up with the Department of Justice (DOJ) Antitrust Division and the Federal Trade Commission (FTC) in the lead. Recently, the DOJ filed Statement of Interest on several pending cases to provide courts with significant guidance on the analysis of “no-poach” agreements and clarified that alleged cases of “no-poach” agreements do not automatically warrant per se review.

Issues concerning employee misclassification continue to grow, as employers often misunderstand the legal distinctions between employees and independent contractors.   While many employers are tempted to hire and classify their workers as independent contractors, they often fail to appreciate both the legal requirements necessary to accomplish this, and the disastrous financial outcomes that can result from their mistake.  It is essential that employers understand and follow the complex and often confusing rules issued by state and federal agencies as well as the U.S. courts. 

The COVID-19 virus has posed unprecedented challenges for employers of all sizes. Agencies at the federal, state, and local levels are issuing a stream of guidance and orders that are updated on a daily basis. Relatedly, employers are trying to familiarize themselves with the obligations imposed and benefits conferred by a barrage of new legislation.

Class actions alleging labor law violations continue to hound employers throughout the country. As the volume of these cases increases, new court rulings also continue to emerge and reshape the litigation landscape. Anticipated court rulings which employers should follow in 2020 include Retirement Plans Committee Of IBM v. Jander, et al., Intel Corp. Investment Policy Committee v. Sulyma, et al., and Thole, et al. v. U.S. Bank, N.A.

Classifying whether a worker is an independent contractor or an employee is crucial for businesses. However, although most employers try to do it right, many of them still misunderstand the legal distinctions between the two. This typically results in worker misclassification, making employers at risk of enforcement actions and financial penalties.

The Department of Labor Regulations on disclosure of 401(k) plan fees and expenses are designed to provide transparency to participants in a user-friendly format, allowing for an apples-to-apples comparison of fees and expenses under a plan’s investment options that impact participant account balances, and a look under the hood on plan administration costs charged to participant accounts.  But greater disclosure can lead to greater scrutiny, and an essential duty for plan sponsors is monitoring fees and expenses that could reduce participant account balances, and timely addressing excesses.

The past years have seen changing tides on the Americans with Disability Act (ADA) litigation landscape. The number of lawsuits filed in federal courts, which chiefly stemmed from alleged violations on websites and mobile application accessibility, has continuously increased. As regulatory developments and court decisions are yet to unfold, the ADA litigation landscape remains uncertain. Thus, businesses and their counsel must keep themselves in the know of any emerging update in this field of law. They must also revisit their practices to ensure ADA compliance and dodge potential lawsuits.

Numerous policy changes and trends concerning wage and hour have made the landscape more complicated and challenging. Recently, the Wage and Hour Division (WHD) of the US Department of Labor (DOL) released six opinion letters which aimed to address a raft of issues under the Fair Labor and Standards Act (FLSA).