A NEW BAN ON THE NONCOMPETE BAN
The Federal Trade Commission's (FTC) novel initiative to ban employment non-competition agreements nationally now likely faces a ban itself. In early July 2024, a federal court in Texas issued a preliminary injunction stopping the new FTC rule from taking effect until a court resolves questions about its legality. As reported by Parsons Behle & Latimer previously, the FTC adopted the rule last April with an intended effective date of September 2024. The FTC rule bans most noncompete agreements and requires businesses to tell current and former employees that existing noncompete agreements are no longer enforceable. Although the recent order by the Texas court is preliminary, it seems doubtful that the FTC rule will survive full and final scrutiny. The Texas court ruling concluded that the FTC statute does not appear to give the agency the power to regulate this type of alleged unfair competition. The court promised a final ruling on the question by late August 2024, and appeals will probably follow. The Texas court's ruling as drafted applies only to the litigants in the case, but that scope could expand as this and other cases move through the court system. Meanwhile, employers still must comply with any state law regulations that apply to noncompete agreements.
OTHER REGULATORY CHALLENGES TO FOLLOW?
The decision striking down the FTC rule, combined with another recent United States Supreme Court decision, is raising questions about whether other federal employment regulations might be at risk, too. The recent Supreme Court decision reversed the so-called Chevron doctrine, under which courts deferred to the reasonable interpretation of regulators when statutes enforced by those regulators were vague. Now, the courts will only give such deference if required by a specific agency statute. Absent such deference, a number of new federal agency actions might be subjected to reexamination. This could include the Equal Employment Opportunity Commission's expansive interpretation of the new Pregnant Workers Fairness Act, the Department of Labor's increased salary thresholds for overtime pay exemptions, and the National Labor Relations Board's campaign to banish civility rules from workplaces. There is a lot of activity right now in the federal HR regulatory law realm. Stay tuned!
MENTAL HEALTH EPIDEMIC HITS THE WORKPLACE
I get a lot of calls from clients trying to navigate compliance with the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and related laws. Unlike a few years ago, however, these days, most of the underlying health conditions involve mental health issues. Anecdotally, it feels like employers are dealing with an epidemic of employee anxiety and depression. Maybe it is not just an anecdotal reaction. SHRM reports that today, 51% of those with workplace disabilities identify a mental health condition, the most common, followed by cognitive/learning, such as dyslexia or autism (16%); neurological, including multiple sclerosis or cerebral palsy (11%); physical/mobility (9%); vision (7%); and hearing (7%). According to the American Psychiatric Association's 2024 mental health poll, 43% of adults say they feel more anxious than they did in 2023, up from 32% in 2022. Anxiety and depression among young adults has been increasing since 2005. Overall, according to a 2022 KFF/CNN survey, 90% of Americans believe the country is experiencing a mental health crisis. A JAMA Health Forum report also notes that 38% more people have sought mental health care since the pandemic began. Other possible causes? Current events, such as the economy, the 2024 election and gun violence – maybe even social media. Employers should remember that when it comes to applying the law, mental health conditions should be handled the same basic way as physical impairments. But it also wouldn't hurt to consider how workplaces can enhance employee mental health rather than becoming another cause of the epidemic.
IT'S SUMMER HR LAW READING TIME!
Summer is always a good time to catch up on your reading, including all things HR law. There are a lot of interesting offerings online. Here are some samples: Employers are thinking (as the law requires them to do) about how to protect employees from the high temperatures hitting most of the country right now. Thinking about a shorter workweek? Greece is going in the opposite direction, allowing for a six-day workweek due to "the twin perils of a shrinking population and shortage of skilled workers." California Governor Gavin Newsom has announced a new deal between business and labor to amend the Private Attorneys General Act of 2004, under which a lot of employment lawsuits are brought in that state. The Washington Post is reporting about the ongoing battle between companies and employees over remote work and return-to-office mandates. And here is a good article from SHRM on...summer reading! Fall will be here soon, so enjoy those long lazy summer days, but don't forget...HR laws never take a vacation!
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