Employment Law This Week®: White House on Non-Competes, Transgender Bathrooms, Fair Pay and Safe Workplaces, Freelancer Wage Protection

Episode 49: Week of November 7, 2016

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We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

(1) White House Issues Call to Action on Non-Competes

Our top story: The White House issues a call to action.  The administration is calling on states to combat what it describes as the “gross overuse of non-compete clauses today.” The statement recommends legislation banning non-competes for certain categories of workers and prohibiting courts from narrowing overly broad agreements. New York Attorney General Eric Schneiderman answered the call immediately, announcing that he would introduce relevant legislation in 2017. Zachary Jackson, from Epstein Becker Green, comments:

"President Obama's call to action encouraged states to take action to do three things. One, to ban non-competes for certain types of employees, such as low-wage earners; two, to increase transparency in the way that employers communicated with employees about non-competes; and three, to incentivize employers to write non-competes that are enforceable. ... It used to be that non-competes were subject to scrutiny in the courtroom, but now we're seeing that scrutiny also in the media and in the political arena. ... With scrutiny of non-competes occurring in additional fora, it's important for employers to review their non-competes, both to make sure that they are enforceable and to make sure that they're administered to appropriate levels of employees." Read a recent blog post on this topic.

(2) High Court Will Hear Transgender Bathroom Case

The Supreme Court will examine the definition of “sex discrimination.” The High Court has agreed to hear a case involving a transgender student and his use of the boys' bathroom at school. The legal issue at the center of the case is the interpretation of regulations implementing Title IX, which bans sex discrimination in schools. The Department of Education has put out guidance interpreting "sex discrimination" to include claims based on gender identity, and the Fourth Circuit deferred to that interpretation in this case. This case could have implications for other laws that prohibit sex discrimination, including Title VII of the Civil Rights Act.

(3) Texas Court Blocks Fair Pay and Safe Workplaces Regulations

Federal contractors get a reprieve from the “blacklisting” rule. A Texas federal court issued a temporary nationwide injunction on portions of the Fair Pay and Safe Workplaces rule. The executive order includes controversial disclosure requirements for government contractors and restrictions on arbitration. The district court ruled that the prohibition on certain arbitration agreements conflicted with the Federal Arbitration Act, and the reporting requirements could allow contractors to be disqualified from obtaining contracts without due process.

(4) New York City Council Passes First Freelancer Wage Protection Law

The New York City Council has passed the nation's first legislation bolstering protections for freelancers. The "Freelance Isn't Free" Act, which passed unanimously, implements penalties for employers who do not pay freelance workers within 30 days of services rendered. In addition, the Act requires a written contract for freelance work worth $800 or more. The contract must include an itemized accounting of the work to be performed and the rate of pay. Mayor Bill de Blasio is expected to sign the bill.

(5) Tip of the Week

Brian Chevlin, Senior Vice President and General Counsel for Pernod Ricard USA, is here with some advice on how to build a committed legal team through a culture of appreciation:

"One of the things we've tried to embrace here at Pernod-Richard is a culture of appreciation. And we do that in several ways. First, we try to hire attorneys with a high emotional IQ. That is to say, when they're meeting with the business, there's a self-awareness of what the business is trying to do, and it's a very solution-oriented mentality and discussion. We call ourselves ‘the Department of Yes.’ ... Another way we do it is to regularly update the attorneys on how they're doing. We don't wait until the end of the year to do an employee evaluation, because by that time, you forget half the things you want to discuss with an attorney. We give them monthly check-ins, where they sit with their manager, discuss the good things they're doing and the things where they need more development. And that's been really excellent for us. The other thing we do, and this is a personal thing I do, is just to let them, the attorneys, know I appreciate them. So I like to write handwritten notes."

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