Labor and Employment

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As previously reported (here and here), some Delaware courts have recently declined to “blue pencil,” i.e., modify and narrow overbroad restrictive covenants. Instead, they have stricken in their entirety covenants deemed overbroad and declined to enforce them. On December 10, 2024, in Sunder Energy, LLC v. Tyler Jackson, et al., the Delaware Supreme Court affirmed that Delaware courts have the discretion to decline to blue pencil overbroad restrictive covenants, even if the defendant’s conduct would violate a more narrowly circumscribed covenant. Continue Reading Delaware Supreme Court Refuses to Enforce Noncompete Against Company Founder Who Joined Competitor

As we have previously reported, from the time President Biden took office, the National Labor Relations Board (“NLRB” or the “Board”) began systematically reversing Trump-era policies, and shifting toward increasingly more pro-union and pro-employee policies. These efforts have not been slowed by the impending end of the Biden administration. On December 10, 2024, the NLRB overruled a Trump-era Board decision and returned to an employee- and union-friendly standard for determining when unilateral workplace changes made by an employer are unlawful.Continue Reading NLRB Returns to Union-Friendly “Clear and Unmistakable Waiver” Standard

Beginning January 8, 2025, visitors from the United States (as well as from other countries) traveling to anywhere in the United Kingdom will need an Electronic Travel Authorization (“ETA”) prior to travel, regardless of age. Also, passengers who are merely transiting through an airport in the UK will need the ETA as well.Continue Reading Flying to London for a Meeting or as a Tourist? You Must Complete the New On-Line ETA Visa Waiver Form

An Indiana appellate court recently declined to enforce an executive’s non-compete on the grounds that the covenant’s activity restriction was overbroad.Continue Reading Indiana Appellate Court Rules Medical Company’s Non-Compete with Chief Operating Officer Overbroad and Unenforceable 

In less than two months, Donald Trump will be sworn in as the 47th President of the United States. President-elect Trump has already announced that he will nominate Republican Congresswoman Lori Chavez-DeRemer as his pick to serve as the next Secretary of the Department of Labor (“DOL”). It remains to be seen if the Trump DOL will continue the current administration’s targeting of the healthcare industry.Continue Reading Will the Trump Labor Department Continue the Current Sharp Focus on the Healthcare Industry?

The election is over and a second Trump administration will begin in January 2025 (“Trump Administration”). Numerous changes to the employment law landscape will come with it. And if past is prologue, many of these changes will roll back various Biden-era initiatives and priorities at the various federal agencies tasked with implementing and administering federal law governing the employer/employee relationship. Below is a summary of just some of the changes employers could expect at the Equal Employment Opportunity Commission (“EEOC” or “Commission”), Department of Labor (“DOL”), and National Labor Relations Board (“NLRB”) during the Trump Administration, as well as what employers could expect to see with respect to the federal government’s efforts to prohibit certain restrictive covenants.Continue Reading In With the “Old,” Out With the “New”: Second Trump Administration Will Usher in Significant Changes at the EEOC, DOL and NLRB

On October 11, 2024, in the matter of Ephriam Rodriquez v. Southeastern Pennsylvania Transportation Authority (“SEPTA”), the Third Circuit Court of Appeals addressed the legal standards for establishing a “serious health condition” under the Family and Medical Leave Act (“FMLA”). This decision highlights what constitutes a “serious health condition” under the FMLA, and the standards that should be applied in assessing such claims.Continue Reading What a Headache: The Third Circuit Finds That a Plaintiff’s Migraines Were Not a Serious Health Condition Under the FMLA

On July 3, 2024, Judge Ada Brown of the U.S. District Court for the Northern District of Texas entered a limited, preliminary injunction barring the Federal Trade Commission (“FTC”) from enforcing its controversial Final Rule (“Rule”) which purports to ban almost all non-compete agreements. Importantly, Judge Brown’s preliminary order only enjoined enforcement of the Final Rule against the named plaintiffs who opposed it. On August 20, 2024 – just two weeks before the Rule’s effective date – Judge Brown greatly expanded the scope of her initial ruling by granting summary judgment for the plaintiffs and ordering the Rule be completely “set aside” and “not be enforced or otherwise take effect on September 4, 2024[.]” Judge Brown’s order may be the fatal blow for the Rule, and should end a months-long saga of uncertainty for employers.Continue Reading Final Word on Final Rule? Texas District Court Eviscerates FTC’s Non-Compete Ban

Companies usually hire a foreign national who requires visa sponsorship because they cannot find a U.S. worker with those skill sets, which is frequently in the STEM fields. However, visa sponsorship comes with significant costs to the employer. Employers may be able to recover a portion of the immigration sponsorship fees by implementing what are called “clawback” provisions into their employment agreements. Clawback provisions are terms in the employment agreements that, in the event of a resignation by the employee before a certain date, require the employee to reimburse the employer for a portion of the costs or fees associated with his or her visa sponsorship.Continue Reading You Are Sponsoring a Foreign National Employee for Permanent Residency, Can You Clawback Some of the Fees?

On May 16, 2024, the United States Supreme Court resolved a circuit split regarding whether Section 3 of the Federal Arbitration Act (“FAA”) provides trial courts the discretion to dismiss a lawsuit when all claims are subject to arbitration. In Smith v. Spizzirri, a unanimous Court ruled trial courts do not have discretion to dismiss a lawsuit that involves an arbitrable dispute, and must instead stay the proceedings.Continue Reading Supreme Court Rules Trial Courts Must Stay, Not Dismiss, Lawsuits During Arbitration

On May 10, 2024, the Ninth Circuit decided Yuriria Diaz v. Macy’s West Stores, after the employer appealed the district court’s decision ordering arbitration of both an employee’s individual and non-individual claims under the California Private Attorney Generals Act (PAGA). The Ninth Circuit held that even though the arbitration agreement made no mention of PAGA, an employee’s individual PAGA claim was still subject to arbitration because the parties’ intended to arbitrate all employment disputes between them. However the non-individual PAGA claims were not arbitrable, because the parties did not consent to arbitration of those claims. Continue Reading Ninth Circuit Rules That Only Individual PAGA Claims Can Be Compelled to Arbitration