The Federal Trade Commission announced a proposed rule that would, if adopted, ban the use of employment-based non-competes and require employers to rescind existing non-competes. The FTC’s proposed rule would reshape large segments of the American economy and supplant numerous recently enacted state statutes restricting the permissible use of non-competes and other restrictive covenants. If the proposed rule becomes effective, employers will need to consider alternatives to protect customer and employee relationships, and confidential information.
2022 was a relatively quiet year in terms of noncompete developments. However, both state legislatures and courts continued to take steps to narrow the circumstances under which noncompetition and employee non-solicitation agreements may be enforced. As such, employers remain well advised to continue to: (1) be selective in identifying those categories of employees required to sign noncompete agreements; (2) rely on choice of law and venue provisions as allowed to maximize the chances of enforceability; (3) keep a keen eye on statutory developments; and (4) avoid no-poach agreements with other employers.
On Thursday, June 10, 2021, OSHA issued its first Emergency Temporary Standard (ETS) in 38 years, providing long-awaited guidance for health care settings that deal directly with patients suspected or confirmed to be COVID-19 positive. This ETS will remain in effect until a permanent standard is in place or OSHA determines there is no longer a grave danger to the covered workforce.
On Monday, May 17, 2021, on the heels of the CDC relaxing mask and distancing restrictions for fully vaccinated people, OSHA revisited its previous guidance recommending face coverings in the workplace. While the agency noted that it is still evaluating the new guidelines, OSHA provisionally advised employers to refer to the CDC for workforce safety measures for fully vaccinated workers.
On March 12, 2021, the U.S. Occupational Safety and Health Administration (OSHA) released a new National Emphasis Program (NEP) designed to “significantly reduce or eliminate worker exposures to [COVID-19]” by targeting specific “high-hazard industries or work tasks” with greater frequency of close contact between workers for on-site inspections, outreach, and compliance assistance related to COVID-19 prevention and response measures. While federal OSHA’s NEP technically does not apply to state plans, OSHA is strongly encouraging them to do so; and state plans must submit within 60 days a notice of intent indicating whether they intend to adopt same or similar initiatives.
The NEP specifically targets certain industries based on public enforcement data, such as complaints, inspections and COVID-19-related violations, where the data reflects that workers are expected to perform tasks associated with exposure to COVID-19. The NEP lists numerous “primary” targets, which are divided up as either healthcare or non-healthcare employers.
Access to COVID-19 vaccines continues to expand in the United States and employers are navigating many questions surrounding employee vaccination and return to work. Current polling shows a substantial number of American workers are hesitant about or may refuse to be vaccinated against COVID-19. Now, an employee in New Mexico has filed what appears to be one of the first lawsuits opposing an employer’s vaccination mandate.