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The Modern Workplace

The beginning of a new year is a good time for employers to consider reviewing and possibly revising any non-compete and confidentiality agreements in place for their workforce or to consider putting such agreements in place. Generally, courts look more favorably upon the enforcement of confidentiality agreements than on non-compete or non-solicitation restrictions and all are subject to state law, as discussed more below. It is also possible that the federal law landscape on non-compete agreements might change significantly under the new administration of President Biden
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It comes as little surprise that the new administration in Washington is contemplating changes to laws and rules affecting employers. Early hints about changes that might be in store began to appear already on Inauguration Day. These included a regulatory freeze issued by the White House in the form of a non-binding memorandum to federal agencies. This freeze, which is aimed at halting pending regulatory changes while the new administration takes time to assess them, may affect the Final Rule on Independent Contractor status about which we wrote in this space on January 14, 2021. We ...
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On January 7, 2021, the U.S. Department of Labor (DOL) published its final rule (Final Rule) setting new standards for determining when a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The Final Rule takes effect sixty days from its publication in the Federal Register and is, therefore, scheduled to take effect on March 8, 2021. The DOL notes that the Final Rule reaffirms the economic reality test; however, the new test changes the analysis to be used when applying the test.

New Test
The Final Rule implements a five-factor economic reality ...
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With two COVID-19 vaccines already authorized for emergency use in the United States and more likely forthcoming soon, employers are asking whether they can and should require employees to get vaccinated. This alert identifies some of the major issues that employers are likely to face when rolling out policies related to vaccinations. 
Can Employers Require Employees to Get Vaccinated?

Recently released guidance from the federal Equal Employment Opportunity Commission (EEOC) strongly suggests that employers can require employees to get vaccinated. Although the guidance does ...
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Posted in Labor & Unions
The National Labor Relations Board (NLRB) recently affirmed the decision of an administrative law judge that FDRLST Media, LLC (FDRLST) violated the National Labor Relations Act in June of 2019 when Ben Domenech, publisher of the Federalist, published the following tweet on his personal Twitter handle: FYI @fdrlst first one of you tries to unionize I swear Ill send you back to the salt mine. Domenechs tweet was posted in response to the news of Vox Media Inc. employees walking off the job after demanding a new collective bargaining agreement. FDRLST contended that Domenechs tweet was ...
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With COVID-19 cases surging, employers should take the time to review the federal Occupational Safety & Health Administrations recent guidance document, which was generated based on a review of data from citations issued, many of which were the result of complaints, referrals and fatalities in industries such as hospitals and healthcare, nursing homes and long-term care facilities, and meat/poultry processing plants. OSHA News Release (11/7/2020).

The guidance document identifies the standards that are most frequently cited in coronavirus-related OSHA inspections and ...
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Prior to COVID-19, virtually all union representation elections were conducted through in-person voting, often at the workplace. In mid-April, however, the federal National Labor Relations Board (NLRB) empowered its Regional Directors to exercise their discretion to order mail ballot elections when circumstances warrant. Since then, virtually all such elections have been conducted by mail because of the pandemic. Many of these decisions were challenged, generally by employers arguing that in-person voting can be conducted safely, but those objections have not been ...
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With the holidays fast approaching and employers beginning to think about their employee holiday gatherings, the Centers for Disease Control (CDC) recently issued updated holiday guidance amid the COVID-19 pandemic. While the guidance is not targeted specifically to the workplace, it provides employers insight into the various factors they should consider when planning and hosting in-person company-sponsored events, which include the following:
  • Check the COVID-19 infection rates in your area, which can be accomplished by consulting the applicable state and local health ...
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The federal Occupational Safety and Health Administration (OSHA) recently published additional frequently asked questions and answers (FAQs) regarding the need to report employees in-patient hospitalizations and fatalities resulting from work-related cases of the coronavirus. These FAQs reverse OSHAs previously issued guidance that, for cases of COVID-19, the work-related incident triggering reporting requirements was the employees positive diagnosis. Now, the triggering event is the employees exposure to the coronavirus at work.
 
Employers are required under ...
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Many employers have implemented Diversity & Inclusion (D&I) programs over the last few years, often including training on topics such as implicit or unconscious bias. For some employers, those efforts may now be in peril. On September 22, 2020, the White House issued Executive Order 13950 entitled On Combating Race and Sex Stereotyping (EO 13950 or order). The orders stated purpose is to combat offensive and anti-American race and sex stereotyping and scapegoating. Private employers are not covered by EO 13950, but federal contractors and subcontractors (and recipients of ...
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