FTC bans all non-competes … Now what?

There's more than one way to skin a cat … or at least that's what many employers are hoping.

Yesterday, the Federal Trade Commission turned the workplace on its head by banning nearly all non-compete agreements.

I'm not going to summarize the FTC's Rule; your inboxes and LinkedIn feeds will be flooded with plenty of those … including this one we sent out this morning.

Suffice it to say that 120 days from the publication of the Rule in the Federal Register, employers will no longer be able to enforce any non-compete agreements except for those already in place with senior execs earning $151,164 or more annually.

WIRTW #714: the ‘today's post is brought to you by the letters W, G, and A' edition

"No one wants to see a picket line on Sesame Street," said Writers Guild President Lisa Takeuchi Cullen.

Earlier this week, Writers Guild members at Sesame Workshop unanimously voted to authorize a strike if management does not agree to a new collective bargaining agreement before their current contract expires later today. Absent a deal, picketing will begin on April 24.

The writers are seeking industry standard annual raises, improvements to residuals, and union coverage for Sesame Workshop's animation and social media segments.

Anyone who follows me on the regular knows that I'm no fan of labor unions. The demands of these writers, however, seem fair and reasonable. They will also have public sentiment on their side.

"Millions of parents and families around the world are going to have a lot of questions," said Lisa Takeuchi Cullen. "They might ask why the bosses at Sesame Workshop are ignoring their company's own messages of kindness and fairness."

Ouch. Your business has a serious problem when your actions don't match stated values. And that's brought to you by the letters, B, A, and D.

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Here's what I read and listened to this week that you should, too.

Supreme Court eases path for employees to sue employers for discriminatory job transfers

In a unanimous decision, the Supreme Court held that an employee alleging a discriminatory job transfer need not show the suffering of a "materially significant" disadvantage. Instead, the employee need only show "some injury respecting her employment terms or conditions."

The case involved a police sergeant forced to transfer out of her position in the department's intelligence division. The employer claimed that she could not establish a Title VII volitation because the transfer did not result in a diminution of her pay. 

EEOC makes is clear that the Pregnant Workers Fairness Act covers unpaid time off for abortions

From this point forward, if an employee needs an unpaid leave of absence to obtain and recover from an abortion, you better give it her. I realize this topic is divisive, but this issue is no longer subject to debate.

Earlier this week, the EEOC published its final regulations implementing the Pregnant Workers Fairness Act. Pre-publication, agency considered 94,000 comments urging it either to exclude or include "abortion" from the Act's definition of "pregnancy, childbirth, or related medical conditions." The EEOC chose the latter. Here's why.

One bourbon, one union election, and one Cemex bargaining order

One bourbon, one union election, and one bargaining order … is what an NLRB ALJ told Woodford Reserve Distillery last week. The judge held that the distillery violated federal labor law by undermining its employees' unionization efforts and ordered the distillery to bargain with its employees as their remedy.

WIRTW #713: the ‘lounging around' edition

Next week I'll be at the Craft Brewers Conference at the Venetian in Las Vegas — a four-day gathering presented by the Brewers Association of all things craft brewers and craft beer. There are loads of speakers spread across eight educational tracks, a massive trade show, and too many networking opportunities to count.

On the educational front, I'm speaking on Sunday as part of the THRIVE pre-conference workshop discussing how to craft a harassment-free craft brewery.

On the networking front, my firm is sponsoring the Start A Brewery lounge. Start A Brewery is a community of craft beer industry veterans who share our knowledge and experience in support of the craft beer community by helping new breweries and breweries in planning.

If you're at CBC and want to connect, look for me in the Start A Brewery lounge. I will be in and out on April 22 and the morning of the 23rd. (The lounge is open through the 24th.)

Our lounge will be located at the top of the escalators leading into the main exhibit hall at the Venetian. There will be beer available all around us, and we'll have couches and charging stations to refresh yourself and your devices.

Please let me know if you plan on stopping in so that I can make sure I'm present and available. And please say hello if you're at my speaking session or just happen to run into me at the Conference or at any of the events around Las Vegas. I will happily share a beer with you and toast our industry.

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Here's what I read this week that you should read, too.

Don't be an ostrich with harassment

"If I ignore harassment, it will go away" … is the 100% incorrect response to harassment happening in your workplace. It's also a non-refundable first-class ticket to a nasty lawsuit.

An employer CANNOT ostrich workplace protected class harassment. "Employer" includes managers and supervisors. If someone in a position of authority witnesses or otherwise learns of protected class harassment in the workplace, the business has the same legal obligations as if the victim had complained.

Must you accommodation an employee's religion not to attend DEI training? Believe it or not, it might depend on the training.

"Your respectful workplace training is against my religion; count me out."

That's what one employee told his employer when it tried to compel him to attend its mandatory training about treating all with courtesy and respect.

When the employee learned that one module of the training would include LGBTQI+ issues, he explained to his employer, "This subject matter contradicts my sincerely held religious beliefs." He advised that he would excuse himself during that portion of the training.

WIRTW #712: the ‘OH-WOOO’ edition

I will officially have a college student in a little over four months. The "if" was never in doubt, but there "where" definitely was … at least until a couple of weeks ago.

Norah chose Ohio Wesleyan University — OWU, or, as it's affectionately called, OH-WOOO. She'll be a Battling Bishop.

"Fit" might be a four-letter word in the employment law space, as employers often use it as a pretext for discrimination. But for Norah's college choice, it was all about fit.

✅ Small liberal arts school

✅ Small class sizes
✅ Within a shortish drive from home
✅ The ability to double major in early childhood education and French
✅ Opportunities to study abroad
✅ A cute campus with off-campus amenities within walking distance

OWU checked all of these boxes. It also didn't hurt that OWU awarded her a Wesleyan Scholarship (one of its highest academic awards) and accepted her into both its Honor Program and Global Scholars Program.

To listen to Norah talk about the "why" of her college choice and the process she used to make her decision, tune in to this week's episode of The Norah and Dad Show, which you'll find on Apple Podcasts, Spotify, Amazon Music, Overcast, via your browser, and any everywhere else you get your podcasts

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Here's what I read this week that you should read, too.

The 5th nominee for the Worst Employer of 2024 is … the abhorrent optometrist

"The only thing that changed from when I left for maternity leave to when I was terminated was the fact that I had a baby. It sent a clear message they didn't value me as a person, as a new mom. It was shocking."

Those are the words of Dr. Alana Curatola, who is now suing her former employer, Northwest Eye Surgeons, for discrimination.

YouTuber faces legal challenge against his overly broad severance agreement

"Employer and Employee agree to keep the existence and terms of this Agreement confidential and to not disclose its provisions to anyone.… Employer and Employee further agree not to take actions or make statements, written or oral, that would disparage or otherwise defame the goodwill or reputation of the other."

Those are the confidentiality and non-disparagement terms of the severance agreement that Steven Crowder, a popular right-wing YouTuber, provided to Jared Mittelo, his producer.

And they are why Mittelo has filed an unfair labor practice charge with the NLRB.

WIRTW #712: the 'lunatics are in my hall' edition

On April 8, Cleveland will be in the path of totality for a solar eclipse.

One hasn't happened here since 1806; the next one won't be until 2444.

People are losing their minds. Businesses and schools will be closed. Hotels have been fully booked for a year or more. Festivals are occurring. Bars and restaurants are holding special events. Traffic is predicted to be a mess for miles and miles around. All for a few minutes of the moon blocking out the sun, which you can't see without special glasses to keep you from going blind.

You know what? I couldn't care less. It's a hassle, not a celebration.  I'm an eclipse scrooge.

What about you? Are you "Team Eclipse" or "Team Meh"?

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Here's what I read this week that you should read, too.

If your company just agreed to pay $2 million to settle a horrific sexual harassment lawsuit, maybe don’t trash the plaintiff on social media

If your company just agreed to pay $2 million to settle a lawsuit alleging horrific workplace sexual abuse and other sexual harassment, maybe it's not the best idea to trash the plaintiff on social media.

Last week, I nominated National Raisin for the Worst Employe of 2024, based on the allegations of a lawsuit it just settled with the EEOC. Those allegations consisted of widespread sexual abuse perpetrated by a male supervisor. To make matters worse, the lawsuit also alleged that HR did nothing when employees complained.

WIRTW #711: the ‘podcast’ edition

"Jon, tell us about your law firm and your legal practice."

"I'm so glad you asked, Lorain County Business Insights Podcast."

I recently sat down with host Ed Skimin to discuss that and more. We talked about Wickens Herzer Panza's comprehensive legal services for small to mid-sized businesses, our global reach through Mackrell International, the scary implications of artificial intelligence, and the unique challenges of representing craft breweries.

Listen via Apple Podcasts, Spotify, Google Podcasts, Amazon Music, on the web, or wherever else you get your podcasts.

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Here's what I read (and listened to) this week that you should, too.

Cheers to the CHEERS Act! 🍻

If today's dysfunctionally fractured Congress can agree on anything on a bipartisan basis, it must be a good idea.

Raise your glass to the Creating Hospitality Economic Enhancement for Restaurants and Servers (CHEERS) Act, which Reps. Darin LaHood (R) and Steven Horsford (D) recently introduced.

The CHEERS Act would provide tax incentives for bars, restaurants and entertainment venues to install energy-efficient keg and tap systems. The goal is to help stabilize and revitalize hospitality establishments, which are still struggling years after the pandemic.

The 4th nominee for the Worst Employer of 2024 is … the repulsive raisin-maker

National Raisin has agreed to pay $2 million to settle an EEOC sexual harassment and retaliation lawsuit that the agency filed on behalf of a class of female agricultural workers, many of whom only speak Spanish.

According to the EEOC's lawsuit, National Raisin subjected its female fruit sorters to "widespread" sexual harassment perpetrated by a male supervisor, which included:

Does DEI training create a hostile work environment?

"You can't force me to sit through DEI training! I'm White. It creates a racially hostile work environment."

That's what one employee recently argued in a racial harassment lawsuit he filed against his employer, a state department of corrections, which had mandated DEI training for all employees.

The 10th Circuit Court of Appeals affirmed the dismissal of this lawsuit, concluding that this training could not constitute a hostile work environment because it only occurred one and lacked any race-based ridicule or insults.

But all is not roses for employers and their efforts to offer DEI training to better their workplaces. 

It’s past time to self-regulate your use of noncompete agreements before the government does it for you

Boston Beer Co., the brewer of Sam Adams and other craft beverages, is taking heat for its overuse of noncompete agreements. In a recent article, the Boston Globe cites examples of several former lower-level Boston Beer employees forced out of the industry they love because of the noncompete agreements their former employer forced them to sign at their time of hire.

Legally speaking, to be enforceable a post-employment restrictive covenant must be narrowly tailored by time, geography, and a reasonable business interest worthy of protection. Yet, like the Boston Beer example, all too often employers require many too many employees to sign overly broad and overly restrictive agreements. It's bullying and a scare tactic. It's also legally unsupportable. And it's also why the federal government and many states are looking at regulatory and legislative solutions to limit their use.

WIRTW #710: the “if it ain’t broke…” edition

If you have a child applying for college this year, you know the pain that we are currently feeling. This year, Congress decided to change the process to apply for federal financial aid. The changes to the FAFSA ("Free Application for Federal Student Aid") were supposed to make applying for financial aid easier. Instead, it has caused delays, uncertainty, and stress. 

Under the former system, students would have already received their offer letters from the colleges and universities to which they had been admitted, including the full breakdown of all financial aid and the net cost of attendance. That "net cost" is what enables us to make apples-to-apples comparisons of schools and to help our high-school seniors make an informed decision about the best academic, social, and financial choice. 

Instead, the Department of Education has struggled to process the information it has received under this new process. As a result, the DOE has not yet even started providing FAFSA information to colleges and universities, which, in turn, are scrambling to assure students that they will know their financial aid packages and cost of attendance before freshman orientation.

Congress, we know how dysfunctional you have become. You can barely agree on what should be your most core function — legislation to keep our government open — let alone meeting our nation's more pressing needs such as funding for Ukraine, immigration reform, or protecting women's productive rights. Then again, given how you've botched what should be the lowest hanging of fruit when you actually do something, I'm not sure you're actually qualified to govern anything.

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Here's what I read this week that you should read, too.

 

It’s long past time to Ctrl-Alt-Del the FLSA

The Fair Labor Standard Act is not a good law because employers have zero hope in complying with it.

I know this fact is true because I just read Bradford v. Team Pizza. In that case, the 6th Circuit rejected both the employer's and the plaintiffs' interpretation of the FLSA and punted the case back to the district court to interpret the statute instead.