Please note that the information contained in this blog is for informational purposes and is not to be considered legal advice. This blog does not create or imply an attorney-client relationship. Satter Ruhlen Law Firm makes no representation that the information herein reflects the most current state of the law. This blog is not a substitute for consultation with an attorney licensed in your jurisdiction. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.
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Good Jobs: What Biden’s Executive Order on Investing in America and American Workers Means to Workers
On September 6, 2024, President Bident signed the “Good Jobs” Executive Order. In a nutshell, the Order describes what makes a job “good” and directs federal agencies to prioritize projects that improve labor standards.
What is a “Good Job?”
According to the Order, a Good Job:
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Promotes positive labor-management relationships by entering agreements with labor and community groups, such as:
- Project Labor Agreements (pre-hire collective bargaining agreements that establish terms and conditions for a specific project)
- Community Benefits Agreements (agreements between a developer and community groups to provide benefits identified by the community groups)
- Collective Bargaining Agreements (“CBA” or union contract)
- Agreements ensuring uninterrupted delivery of services
- Agreements facilitating first CBAs
- Voluntary Union Recognition
- Neutrality Agreements
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Promotes family-sustaining wages by:
- Paying prevailing wages, wages in the top 25% of industry pay, or union scale wages
- Promoting equal pay
- Eliminating discriminatory pay practices
- Implementing pay transparency
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Promotes economic security by:
- Providing paid sick, family, and medical leave
- Providing health care
- Providing retirement benefits
- Providing child, dependent, and elder care
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Fights discrimination by:
- Adopting recruitment, hiring, and retention policies to attract workers from underserved and local communities
- Implement reporting structures and ongoing training to prevent discrimination and harassment
- Participate in programs supporting compliance with the EEO, Rehab Act, and VEVRAA
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Strengthens the workforce by:
- Investing in union-affiliated training programs, apprenticeships, and pre-apprenticeship programs
- Partnering with community colleges, career and tech programs, disability services organizations, the public workforce system, and the American Climate Corps
- Providing child care and transportation assistance, as well as other services that will help workers complete training
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Protect worker health and safety by:
- Engaging in supplemental safety training
- Working with unions to design and implement workplace safety and health systems
- Disclosing occupational safety and health violations
How Do I Get One Of These Good Jobs?
It’s a little tricky, because no one has created a central clearing house for workers to search for these jobs. Also, each municipality or region has its own mechanisms and acronyms. For example, here in Syracuse, we have ON-RAMP, “Real Life Rosies,” CREATES, and Syracuse Build. Your area will have different acronyms. But one thing you can do is look at job postings for
First, the “good jobs” criteria apply to projects selected by the following Federal departments:
- Department of the Interior
- Department of Agriculture
- Department of Commerce
- Department of Labor
- Department of Housing and Urban Development
- Department of Transportation
- Department of Energy
- Department of Education
- Department of Homeland Security
- Department of the Environmental Protection Agency.
Second, the criteria apply to projects selected by the above agencies for funding through:
- The American Rescue Plan
- The Infrastructure Investment and Jobs Act
- The CHIPS Act
- The Inflation Reduction Act.
So one way to find work that is covered by the Good Jobs Executive Order is to do a web search using one of the Departments, one of the Acts, and your city.
Another way to locate the Good Jobs is to pay attention to news stories in your area: are there any infrastructure projects happening near you? How about tech companies coming to your town? Are there environmental conservation projects underway?
You can also reach out to unions and community organizations in your area. Projects receiving federal funding from these initiatives are expected to engage with community stakeholders, so local chapter of Citizen Action, Jobs to Move America, or your local labor council should be involved with the project already and may know where potential applicants can get more information. Additionally, if you run into trouble getting jobs that you are qualified for, these organizations are going to want to know that so they can make the companies hold up their ends of the bargain.
This is one of those announcements that the news doesn’t usually pick up, so tell your worker friends about the Good Jobs Executive Order. And if you get one of these Good Jobs, join the Union and make it even better.
YOU HAVE TIME TO VOTE! Understanding New York’s Paid Time Off for Voting in 2024
As Election Day approaches, it’s crucial for every worker in New York to understand their rights regarding paid time off to vote. Exercising your democratic right should never be hindered by long work shifts, childcare responsibilities, or long commute times. This blog post will clarify your rights, how to ensure you can vote, and provide a handy chart to keep track of deadlines — especially for those with non-traditional work weeks.
In New York, if you need time to vote, you are entitled to take up to two hours of paid time off from your job, provided that you meet certain criteria.
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Eligibility
If you do not have sufficient time to vote outside of your working hours, you are eligible. “Sufficient time” means four consecutive hours between the opening of the polls and the start of your work shift, or four consecutive hours between the end of your work shift and the closing of the polls.
Here’s how it works:
If your work schedule is from 9am to 5pm, and the polls are open from 6am to 9pm, then the employer does NOT have to provide you with paid time off to vote.
But if your shift is from 9am to 6pm, you are entitled to paid time off to vote because the polls are only open for three consecutive hours after your shift ends. Thus, the employer MUST provide you up to two hours of paid time off in order to vote. This is not PTO or vacation or sick time. This is voting time.
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Notification
You must notify your employer at least **two working days** before Election Day if you need time off to vote. This notification should ideally be in writing.
Employees looking for paid voting time must notify the employer at least two working (business) days prior to actually taking the time. Employees should not provide the notification more than ten days prior to the needed time.
For the November 5 election, here are the notification timelines:
This is a notoriously tricky area of law so DO NOT RELY on the first or last days listed in this chart!!! Play it safe and notify in the middle of the notification window!!!
| If the workplace operates:
|
The earliest day you should notify the employer is: | The best days to notify the employer are: | The latest day you should notify the employer is: |
| Monday-Friday | October 22, 2024 | 10/24-10/31 | November 1, 2024 |
| Tuesday-Saturday | October 22, 2024 | 10/23-11/2 | November 1, 2024 |
| Friday-Tuesday | October 25, 2024 | 10/26-11/2 | November 3, 2024 |
| Saturday-Wednesday | October 22, 2024 | 10/23-11/2 | November 3, 2024 |
| Sunday-Thursday | October 22, 2024 | 10/23-10/31 | November 3, 2024 |
| Every day of the week | October 26, 2024 | 10/27-11/2 | November 3, 2024 |
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Employers’ Obligations:
Employers are required to provide employees with the time they need to vote, but they are allowed to designate when that time off can be taken. They cannot penalize you for taking this time off to exercise your voting rights.
How to Protect Your Paid Voting Leave
A. **Plan Ahead**: Make your voting plan early. Know your polling location, and check your voter registration status to avoid any last-minute issues.
B. **Document Your Request**: When you notify your employer, consider doing it in writing. This can help protect your rights and provides documentation should there be any disputes.
C. **Stay Informed**: Keep abreast of any potential changes to polling hours or regulations as Election Day approaches.
D. **Know Your Rights**: Familiarize yourself with your state’s voting rights laws, and don’t hesitate to stand up for your rights. If you feel that your employer is preventing you from voting, you may report this to your local election office.
If you are concerned that your employer may give you a hard time trying to get paid voting time, contact a reputable New York workplace attorney. Now, get out there and VOTE!
The Independent Contractor Shilly-Shally: Navigating the Maze of Worker Classification
Introduction
Workers who are classified as independent contractors are cut out of a host of Federal workplace protections, such as anti-discrimination statutes, the right to unionize, and wage and hour laws. It’s easy for employers to misclassify workers because the definition of “independent contractor” is hard to pin down – it varies from statute to statute, and even from state to state. But workers who understand the distinction between being an independent contractor and being an employee are empowered to fight misclassification and win the protections they are entitled to. Here are some guidelines:
- Understanding the Basics
An independent contractor is considered to be self-employed, while an employee is employed by the employer (try saying that ten times fast.) Workers suffer a tremendous amount of harm when they are misclassified as independent contractors. So it’s important for every worker to understand how they are classified and why.
Don’t try this at home. This is a complicated inquiry, so always contact an experienced workers’ rights attorney in your jurisdiction before making any big decisions.
Courts and agencies, when deciding whether a worker is an independent contractor or an employee, tend to look at a list of factors to make their determination. Complicating the inquiry, different courts and agencies look at different factors. Generally speaking, the underlying question is how much control the employer has over what, how, and how much the worker does. Decisionmakers will look at things like whether the employer sets the work schedule, whether the worker is allowed to engage in work for other companies, who sets the worker’s wages, whether the worker receives benefits, and whether the worker can refuse tasks. The more independence, the more likely the worker is legitimately an independent contractor.
- Why Does It Matter?
Being an employee means having workplace protections against excessive overtime, wage theft, sexual harassment and discrimination, safety violations, and a host of other exploitative practices. It can also mean eligibility for benefits such as health, disability, and life insurance; participation in retirement plans, and paid time off. From a tax perspective, taxes on a W-2 are much simpler than taxes on a 1099.
By contrast, being classified as an independent contractor opens a worker up to exploitative workplace practices, without much legal recourse. For example, federal anti-discrimination laws do not protect independent contractors – only employees. So if an independent contractor is being sexually harassed, an EEOC complaint isn’t going to do them much good—no matter how bad the harassment is.
That said, there are some reasons a worker might choose to be an independent contractor. True independent contractors can usually control their hours of work, the type and number of tasks they’ll complete, and how they complete them.
The problem is that, if a worker hasn’t chosen to be an independent contractor, an employer’s misclassification of that worker puts the worker in a position to be exploited and injured without good legal protection. So, workers who suspect they have been misclassified should definitely seek legal counsel.
- But I Heard A Different Rule…
Some states (including New York) and municipalities (including New York City) have implemented state statutes and regulations to protect independent contractors. For example, the New York State Human Rights Law extends its anti-discrimination and harassment protections to a variety of non-employees, including vendors, interns, and independent contractors. Another example, the New York City Freelance Isn’t Free Act, requires anyone employing an independent contractor to enter a written contract which specifies the amount, rate, timing and method of compensation.
These laws form a patchwork across the nation, so something that works in New York City isn’t necessarily going to work in Buffalo or San Francisco. We’ll say it again: Don’t try this at home. Always contact an experienced workers’ rights attorney in your jurisdiction before making any big decisions.
Conclusion
Understanding the distinction between being an independent contractor and an employee is crucial for workers to protect their rights and access workplace benefits and protections. Some states and municipalities have implemented laws to protect independent contractors, but these laws vary, highlighting the need for professional guidance in navigating worker classification. Because the definition of “independent contractor” can vary, it is easy for employers to misclassify workers. Therefore, workers should seek legal counsel if they suspect they have been misclassified.
Workplace Violence: Safety Concerns and Legal Protection in New York
Workplaces are dangerous places. Even jobs that don’t involve heavy machinery, poisonous substances, or other physical hazards are plagued with one inescapable safety concern: other people.
Bureau of Labor Statistics data for 2021-22 indicates workplace violence was responsible for 57,610 workplace injuries that resulted in days away from work; there were 524 fatalities as the result of workplace violence in 2022 alone. These injuries resulted from gun violence, bombs, knives, arson, fisticuffs, sexual assault, strangulation, and threats and verbal assault. They were perpetrated by coworkers, bosses, customers, clients, and vendors. Many took place at service and healthcare job sites, but they also occurred in educational settings, professional offices, construction, and transportation, and other industries.
What protections do workers have? Well, it’s complicated. Read on.
What We’ve Got In New York
Several states have enacted laws addressing workplace violence. Some are more effective than others, and each state focuses on different areas. Here’s what’s available in New York (if you work in another state, talk to an attorney in your jurisdiction!):
Since 2006, New York State has had a Workplace Violence [“WPV”] Prevention Act [“Act”] on the books. The Act covers public sector workplaces only (as of January 4, 2024, this includes public school districts as well). It is designed to prevent intentional injuries as well as threats and attempts, including a prohibition on stalking. The Act requires government employers to evaluate risk factors, provide training, implement a system for reporting WPV incidents, and keep records. Certain employers are required to develop a written WPV Prevention Program and post notices about it.
Does this mean New York public sector workers can go to work free from the threat of workplace violence? Well, hardly. Enforcement of the Act is confided to New York’s Public Employee Safety and Health [“PESH”] Bureau, an organization that will inspect a workplace and issue notices to the public employer. Public sector employees can file a complaint with PESH, and PESH may arrange a site visit or issue a notice. If the employer does not abate the hazards, PESH can impose fines of up to $200.00 per day (which seems like a chunk of change, but it’s not much of a deterrent for a lot of employers).
Help (Might Be) On The Way (Sort Of)!
Notice how we keep bolding the word “public” above? That’s because most employees are private sector employees. If you work at a nonprofit hospital or a hardware store, this law does not protect you.
The New York Retail Worker Safety Act [“RWSA”], designed to address workplace violence in retail establishments, has been making its way through the New York State Legislature and has passed in both the Senate and Assembly. The RWSA would require employers in the retail industry to identify risk factors, provide training (including active shooter drills), document and report incidents, and some retail employers would be required to employ a security guard. And the RWSA would require installation of “panic buttons” in certain retail situations. Enforcement is not mentioned in the bill, but the New York State Commissioner of Labor would be empowered to come up with regulations to implement the provisions. Watch this space.
What About The Rest Of Us?
While public sector and retail workers are getting some minimal attention, these laws don’t do much for the rest of us. Injured workers may have recourse to Workers Compensation, and workers who are being harassed may, in some cases, have protection under antidiscrimination or other laws. OSHA keeps making noise about workplaces being “free from recognized hazards” but does not currently have a standard specific to workplace violence.
So a lot of people who work with a legitimately scary person are at the mercy of the boss, who may or may not feel like doing something about the scary person. This is where speaking with a good workplace attorney can be useful. The individual facts of any workplace situation are key to understanding what options are available to employees in these frightening situations.
Conclusion:
While New York has implemented some measures to address workplace violence, such as the Workplace Violence Prevention Act for public sector workers and the pending Retail Worker Safety Act for those in the retail industry, these laws do not cover everyone. It is important for employees who are dealing with frightening situations to consult with an experienced workplace attorney to explore their options. A good workplace attorney can help individuals navigate the complexities of their situation and determine the best course of action.
Avoiding the Legal Snare: The Perils of Training Repayment Agreement Provisions (TRAPs)
Employers are increasingly using Training Repayment Agreement Provisions (TRAPs) to replace other restrictive covenants such as noncompetes and nonsoliciation agreements. But TRAPs can be even more restrictive—and more exploitative—than noncompetes. In this article, we’ll explain what a TRAP is and how to avoid getting caught in one.
What is a TRAP?
TRAPs, also known as Training Repayment Agreement Provisions, are contractual terms that employees sign when they are hired. While the wording may vary, a TRAP requires an employee to work for a certain period of time. If the employee separates from service prior to that timeframe (whether they quit or are fired), the employee has to pay back the employer’s training costs, the costs of buying or renting equipment, or the costs of replacing the employee. Sometimes those fees are prorated depending on how long the employee has worked.
How TRAPs Hurt Employees
TRAPs can be very misleading. Often they don’t state how much the employee will have to pay back, or they don’t disclose interest accrual rates or other information a person would usually be entitled to when entering an agreement that might affect their credit. Sometimes the “training” that an employee is expected to pay for is just the orientation or legally-required videos. Sometimes the fees for such “training” are outrageous – we’ve seen TRAP fees ranging anywhere from $5,000 to $50,000. Some TRAPs accrue interest so fast there is no way an employee will ever repay it. And TRAPs usually don’t provide any exceptions in situations where, the employee quits for reasons beyond their control – like sexual harassment, disability, or lousy working conditions.
A TRAP can reduce an employee’s pay below minimum wage. It can destroy an employee’s credit. Worse, employers use TRAPs as a threat: don’t leave this job or we’ll sue you, destroy your credit, report you to immigration, and make it so you can never find another job. There’s a word for this, and it was outlawed by the 13th Amendment to the United States Constitution. 😡 😡 😡
How To Spot A TRAP
TRAPs are often hidden in piles of onboarding paperwork, so employees might not even realize they’ve signed one. They are commonly used in nursing, trucking, and service industries, but we’ve also seen them in child care and professional contexts.
The only way to know if your employer is trying to get you to sign a TRAP is to read everything before signing. This can be difficult. People get trapped into TRAPs because they are so desperate for a job that they’ll sign anything. But that’s the trap. Employers may be counting on you to sign because you just need the money, and they may pressure you to sign by acting like the job won’t be there if you take your time.
What To Do When You See A TRAP
GET LEGAL ADVICE. TRAPs are illegal in some, but by no means all, jurisdictions—there’s no way to know without consulting an employment law attorney in your area. Legal or not, if someone is pressuring you to sign a document without having an attorney review it, that’s a sign you probably shouldn’t be signing the document. No job is worth your freedom.
Work and Weed: What New York Workers Need to Know
This article discusses a law that may affect New York workers, not workers in other states. By the time you read it, it may be out of date. All workers should consult with reputable workplace attorneys in their jurisdictions to understand how the law may affect individual workplace rights.
Introduction:
The New York Marijuana Regulation and Taxation Act (MRTA), in addition to decriminalizing recreational use of cannabis, theoretically created some workplace protections for New York workers who engage in legal off-duty use. But last year’s Fourth Department decision, Matter of Moran-Ruiz v. Ontario County, 218 A.D.3d 1341 (4th Dept. 2023), has called into question many of those protections, and it’s still illegal under federal law. The only intelligent way to understand how the MRTA affects you is to speak with a reputable New York workplace rights attorney. But here are some things to keep in mind.
1. Off-Duty Use of Marijuana:
The MRTA legalizes the recreational off-duty use of marijuana for individuals aged 21 and older. It is important to note that while the act permits the off-duty use of marijuana, it does not grant employees an absolute right to use or be under the influence of marijuana during working hours. Employers still have the right to enforce workplace policies and existing Collective Bargaining Agreement provisions regarding drug use, particularly if it could impair job performance or jeopardize safety.
2. Drug Testing and Employment:
First the bad news: workers in safety-sensitive positions or positions where drug testing is mandated by federal regulations are still subject to testing, including pre-employment and random drug testing.
Now the slightly better news: For existing employees, drug testing can only be conducted if there is reasonable suspicion of on-duty use, impairment, or violation of workplace policies. What is reasonable suspicion? Well… the statute says that reasonable suspicion does not exist unless the employee “manifests specific articulable symptoms of impairment.” Of course it doesn’t define what a “specific articulable symptom of impairment” might be. This guidance from the New York State Department of Labor indicates that just smelling like marijuana is not a specific articulable symptom. Glassy eyes, lack of focus, and lack of coordination have all been posited as possible articulable symptoms. But those are also symptoms of medical conditions that may trigger an obligation on the employer’s part to offer reasonable accommodations. So, watch this space.
The reality is that, if an employer reasonably suspects on-duty marijuana use or impairment, they may request an employee to undergo a drug test, and the drug test will be used as evidence that the employee may have been using marijuana while on duty. And because most employment is at-will, the employer doesn’t have to prove anything. So unless you have a union, you might be out of luck, even if you weren’t high at work.
3. Implications of Matter of Moran-Ruiz v. Ontario County:
This is where it gets weird. The MRTA created a whole new section in the New York lawful off-duty activities statute, seemingly creating robust protections for workers who engage in lawful off-duty use of cannabis. But Matter of Moran-Ruiz significantly dials back those protections, concluding that the new section only gives employers additional excuses to discriminate on top of all the reasons that employers can already legally discriminate. (Not even kidding. Check out the language at the end of the decision.) So far, Moran-Ruiz stands. But…watch this space.
4. Conclusion:
Theoretically, the MRTA allows for off-duty cannabis use, but employers retain the right to implement policies regarding drug usage during working hours. And the decisional law so far has not been promising. It is crucial for employees to understand the limitations of the statutory protections. Staying informed and seeking legal advice is the best way to protect your workplace rights. Always consult a legal professional for personalized advice.
Dressing for Success: Workplace Dress Codes, Grooming Standards, and Your Rights
Employers may establish dress codes or grooming standards to create a particular image or comply with safety requirements. These workplace rules may require uniforms or simply require a particular type of attire. Companies generally have the authority create these rules, as long as they apply them equally. As long as the dress code does not stifle Union activity, treat certain groups less favorably, or interfere with a reasonable accommodation, then the dress code wins. But there are some exceptions.
1. Union Clothing
Union-related clothing is a great way to show solidarity with your coworkers. In general, an employer can’t just say “don’t wear Union paraphernalia.” But they can prohibit buttons and pins of any type, or make rules about safety, or say that their dress code prohibits wearing t-shirts. The rules on this issue flip-flop approximately every four years, so talk to your Union rep or a workplace lawyer if you are getting called out for wearing that “Respect Our Contract” button.
2. Discrimination
Although employers have the right to implement dress codes, they must do so in accordance with anti-discrimination laws. Any dress code policy that disproportionately impacts certain protected groups may be deemed discriminatory:
A. Gender
The EEOC has concluded that a dress code that requires only women to wear uniforms probably violates Title VII. Historically, dress codes requiring roughly equivalent standards for male and female employees were considered nondiscriminatory if they were enforced equally (for example, neckties for men, skirts for women). But the Supreme Court’s decision in Bostock v. Clayton County has moved the needle, affirming that Title VII prohibits employers from discriminating on the basis of gender identity or sexual orientation. Under Bostock, dress codes and grooming standards may be discriminatory if they are based on outdated sexual stereotypes.
B. Race
Grooming standards that are harsher on one group than another may be discriminatory. For example, if white men are allowed to wear long sideburns and facial hair but Black men are not allowed to wear afros, the grooming policy may be discriminatory. Many states (including New York) have implemented legislation to prevent discrimination on the basis of hair textures and hair styles that protect hair from damage.
Likewise, if shaving causes you skin problems, you may be able to get a reasonable accommodation allowing you to deviate from an employer’s “clean shaven” policy – but you’ll probably have to ask for it.
C. Reasonable Accommodations for Religious or Disability-related Considerations
If a dress code conflicts with an employee’s religious practices or medical condition, the employee may request an accommodation. The employer is then required to modify the dress code unless to do so would result in an undue hardship. Caution: If you don’t request an accommodation, the employer isn’t going to just hand one out. Also, the employer doesn’t have to provide the accommodation requested, just one that doesn’t cost them too much money.
In case you’re wondering, a dress code that allows pregnant workers to wear maternity clothes does not violate Title VII as long as other employees with medical conditions are allowed to deviate from the dress code as needed.
D. National Origin:
In general, a dress code does not have to be modified to adhere to a person’s national identity. But a dress code that prohibits some kinds of national attire but not others may be discriminatory. For example, if brightly colored clothing is allowed but an employee gets into trouble for wearing Kente cloth, that could be discriminatory.
Conclusion:
This is a rapidly-changing area, so it’s important to get advice from legal professionals or government agencies when it seems like a dress code is cramping your style. Always speak with a qualified workplace attorney in your geographical area to determine whether you have legal protections against your employer’s dress code!
What’s Going On With Non-Compete Agreements?
You may have heard about the Federal Trade Commission’s Final Rule banning non-compete clauses, which issued on April 23, 2024. What does that mean for workers two months later? So far…well, read on.
What is a non-compete? A non-compete (or noncompete, depending on who is spelling it) is a form of restrictive covenant, which is a way of restricting activity after a transaction or legal relationship has ended. The most basic form of a non-compete prohibits an employee at Company A from going to work for Company B for a period of time after the employee no longer works for Company A.
Yes, you read that right. Company A wants to control the employee after the employee no longer works for, and is no longer paid by, Company A. Simply put, if a worker is unhappy in the job and wants to move on to a better opportunity, a non-compete stops that from happening. Workers who violate these clauses can face hundreds of thousands of dollars in liquidated damages, injunctive relief, attorneys’ fees, and the total destruction of their careers.
If this seems perverse to you, join the club. As long ago as 2016, the New York State Attorney General reached an agreement with Jimmy John’s, following an investigation into the sandwich company’s practice of distributing two-year non-competes to sandwich makers. The AG put a stop to the practice, observing that these things “…limit mobility and opportunity for vulnerable workers and bully them into staying with the threat of being sued.” The New York State AG’s efforts notwithstanding, non-competes continue to be used to limit worker mobility in a variety of industries.
Is that even legal? Here’s what happens. Say a worker gets a job at a sandwich shop. On the worker’s first day, there’s something called “orientation” or “onboarding” or “training.” During this process, the worker has to sign a dozen or so documents, such as W-4s, I-9s, acknowledgments, etc. One of those documents might be some kind of restrictive covenant. The employee may not even know they signed it. And the employee does not have a choice in the matter: no signature, no job. So the employee signs so they can hurry up and get to the sandwich-making.
Officially, while most employment documents have been deemed by the courts not to be binding contracts, historically, non-competes have been held to be enforceable because, so the logic goes, in return for providing the worker the sumptuous privilege of being paid to make sandwiches, the employer is entitled to extract several years of the employee’s life force. According to the traditional legal analysis, it’s a bargain. And unless a statute specifies otherwise, parties can usually bargain away their own rights, which is why it’s a darn good idea to have an attorney review things before you sign them.
Realistically, the employee has gotten no opportunity to bargain. The employee needs that sandwich-making job to make their car payment and will sign anything to get that paycheck. Sure it’s a contract. It’s also patently unfair.
What happened? The FTC, after several months of gathering commentary, concluded that non-competes are…well…non-competitive. The FTC doesn’t like stuff that interferes with competition. Hence the rule. (This paragraph is a very watered down version of the 570-page rule. Check out pages 11-14 for some real-life examples of how destructive a non-compete can really be.)
Where are we now? First of all, the rule doesn’t become effective until 120 days after it’s published in the Federal Register, which means even if no one hated this rule it wouldn’t go into effect until around September 10.
Second, employers couldn’t move fast enough to take the FTC to court. An accounting firm beat everyone else with Ryan, LCC v. Federal Trade Commission, pending in the Northern District of Texas. The Chamber of Commerce (which, by the way, couldn’t name any employers who were actually hurt by the rule) filed its own case in the Eastern District of Texas but lost out because Ryan got there first. But the COC is being allowed to join the Ryan case, so that’s nice for employers.
Where this leaves the rest of us is that, while we don’t have any crystal balls, decisions coming out of Texas courts recently have not been overwhelmingly progressive. On the other hand, even rich people are sometimes annoyed by non-competes. But then again, employers are already figuring out work-arounds…so don’t pop open the workers’ rights champagne just yet. But go ahead and leave it in the fridge door; we might end up having a use for it in a couple months!
Who knows what will happen between now and September, so if you’re wondering what this means for your particular situation, make sure you speak with a workers’ rights attorney in your jurisdiction. Fingers crossed.
EEOC Update Regarding Workplace Harassment
For the first time in 24 years, the EEOC has updated its guidance on Workplace Harassment. The guidance, which issued on April 29, 2024, provides new clarifications on duties to protect LGBTQIA+ workers, handling virtual harassment, and newly beefed-up protections against harassment based on pregnancy and religious expression.
In 2020, in Bostock v. Clayton County, the US Supreme Court concluded that Title IX prohibitions against gender discrimination include protections against discrimination on the basis of a worker’s sexual orientation or gender identity. The new guidance clarifies that this also means protections against harassment. New examples of illegal harassment include, among other things, intentionally and repeatedly using the wrong pronouns or name, “outing” a person without their consent, requiring an employee to wear clothes inconsistent with their gender identity, and denying use of a particular bathroom based on gender.
Harassment on the basis of pregnancy is also gender discrimination, and includes denial of reasonable lactation time, giving someone a hard time about contraception or abortion, or being nasty to or about a person because they are pregnant.
Employers have always been required to accommodate sincerely-held religious beliefs; the updated guidance clarifies that some amount of coworker proselytizing is acceptable, but if an employee asks not to be part of the discussion, a failure to honor that request is harassment.
The new guidance also specifies that harassment that occurs via email, social media, chat, videoconference, or other online technology is still harassment.
About 20 states’ AGs have sued to enjoin the guidance, mostly because they are freaking out about the gender identity protections. So far the guidance remains in effect…but stay tuned.
Wondering if this is still a thing? By the time you read this blog post, the whole landscape may have changed. So always, always, always talk to a workplace lawyer in your jurisdiction to determine what applies to your particular situation.
Federal “White Collar” Overtime Exemption is Getting A Raise!
Heads up: the Federal “White Collar” overtime exemption is getting a raise. Specifically, the salary threshold above which an employee no longer qualifies for overtime will go up on July 1, 2024 to $844/week ($43,888 annually). On January 1, 2025, the threshold will rise again to $1,128/week ($58,656 annually). The new rule contemplates automatic increases to the salary threshold every three years.
The salary threshold is one test for determining whether employees are “exempt” from overtime rules (which actually means the employer is exempt from having to pay overtime). To be considered exempt, employees must meet the salary threshold, be paid on a salary basis (which means the amount of pay is predetermined and not subject to deductions if the employee is ready, willing, and able to work), and perform duties consistent with being a bona fide executive, administrative, professional, or outside sales person.
Currently the threshold is at $684/week ($35,568 annually) which cuts out a lot of employees who are making more than minimum wage, but not much more. The July increase won’t have much effect on executives and administrative workers in New York, whose salary threshold is already over $1000/week ($1,124.20 for upstaters, $1,200.00 downstate). But New York professional employees may see a difference.
Expect legal challenges to this rule. And always talk to a workplace rights lawyer in your jurisdiction before making any decisions or claims.
