Tag Archives: employmentlaw

January 2025
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Employment Law

A New Year And A New EEOC

On January 21st President Trump named Commissioner Andrea R. Lucas Acting Chair of the EEOC. And Ms. Lucas made it very clear that she will align the EEOC with President Trump’s platform.

“I am honored to be chosen by President Trump to lead the EEOC, our nation’s premier civil rights agency enforcing federal employment antidiscrimination laws,” Lucas said. “I look forward to restoring evenhanded enforcement of employment civil rights laws for all Americans. In recent years, this agency has remained silent in the face of multiple forms of widespread, overt discrimination. Consistent with the President’s Executive Orders and priorities, my priorities will include rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single‑sex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement.”

That statement signifies a definite shift from the EEOC’s strategic initiatives over the last four years. And it offers several takeaways for employers.

Are DEI policies now illegal? Not necessarily, depending on the terms. But you can bet these policies will get intense scrutiny from the EEOC. Do not be surprised if EEOC Requests For Information now include a standard request for any DEI policy. Employers with DEI policies must be prepared to show that hiring and promotion decisions made in accordance with those policies are well supported with objective data which support a legitimate, nondiscriminatory reason for the decision.

Foreign owned employers with operations in the United States should also take heed. Hiring or promoting an employee from your home country over a native US citizen will also get extra scrutiny. Again, be prepared with objective facts which show the decision was based on a legitimate, nondiscriminatory reason.

Finally, Chair Lucas’s statement makes it obvious that any employer that allows transgender or transitioning employees to share a bathroom or other “women’s room” with biological women will have engaged in sex discrimination in the eyes of the EEOC.

It is a new day at the EEOC. Employers should plan accordingly.

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September 2023
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Employment Law

The EEOC’s New Roadmap

On September 21st the EEOC released its Strategic Enforcement Plan (SEP) for the years 2024-2028. The SEP sets the EEOC’s subject matter priorities and is a roadmap to the areas upon which it will focus.

The SEP states that the EEOC will continue its focus on promoting pay practices to prevent discrimination, combatting pay discrimination and advancing equal pay, preventing and remedying systemic harassment and tackling retaliation. The changes to the SEP include:

  • Targeting discrimination, bias, and hate directed against religious minorities (including antisemitism and Islamophobia), racial or ethnic groups, and LGBTQI+ individuals.
  • Expanding the vulnerable and underserved worker priority to include additional categories of workers who may be unaware of their rights under equal employment opportunity (EEO) laws, may be reluctant or unable to exercise their legally protected rights, or have historically been underserved by federal employment discrimination protections.
  • Updating the emerging and developing issues priority to include protecting workers affected by pregnancy, childbirth, or related medical conditions, including under the new Pregnant Workers Fairness Act (PWFA) and other EEO laws; employment discrimination associated with the long-term effects of COVID-19 symptoms; and technology-related employment discrimination.
  • Highlighting the continued underrepresentation of women and workers of color in certain industries and sectors, such as construction and manufacturing, finance, tech and other science, technology, engineering, and mathematics fields.
  • Recognizing employers’ increasing use of technology, including artificial intelligence and machine learning, to target job advertisements, recruit applicants, and make or assist in hiring and other employment decisions.
  • Preserving access to the legal system by addressing overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements when they restrict workers’ ability to obtain remedies for civil rights violations.

Employers, you now know where the EEOC will focus in the years ahead. Now is the time to be proactive and make sure you are compliant in those areas. Take steps such as conducting internal EEO and pay audits, expanding recruiting areas and reviewing and revising policies and procedures. The failure to take those steps now could prove costly in the future.

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January 2023
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Employment Law

The 411 on the FTC’s Proposed Noncompete Ban

On January 5th the Federal Trade Commission (FTC) issued a proposed rule that would ban noncompete agreements between employers and their workers in most circumstances. While the proposed rule will almost certainly be met with legal challenges and ultimately get resolved in the courts, let’s take a look at what you need to know now.

The proposed rule would make it illegal for an employer to enter into or attempt to enter into a noncompete with a worker.

The proposed rule covers all employers.

“Worker” is broadly defined as a natural person who works, whether paid or unpaid, for an employer and specifically includes independent contractors.

Existing noncompete agreements are covered by the ban. Employers must rescind the noncompete by the “compliance date” and are required to notify the worker of the rescission. The compliance date is 180 days after publication of the final rule in the Federal Register, which has not yet occurred.

The FTC has published model language that can be used to communicate the rescission.

The proposed rule makes no mention of non-solicitation agreements. It does, however, specifically state that a non-disclosure agreement that is so broad that it effectively precludes the worker from working in the same field is prohibited, as is an agreement to repay training costs if the worker’s employment terminates within a specified period if the required repayment is not reasonably related to the costs incurred for training.

Presumably, a narrowly tailored agreement that prohibits the solicitation of customers, the solicitation/recruiting of employees and the disclosure of trade secrets and confidential information will still be valid.

A noncompete entered into as part of a sale of business (asset or stock/ownership interest sale) is allowed provided that the individual being asked to sign the noncompete owns at least 25% of the entity being sold.

Although the proposed rule is not yet in effect and will likely be resolved in the courts, there are certain steps employers should take now.

First, if you are asking lower wage or lower level workers to sign noncompete agreements, stop. Those are most likely not enforceable under the applicable state law now, and are even less likely to survive the final outcome of the FTC’s proposed rule.

Second, ask yourself if a non-solicitation and nondisclosure agreement will give you the protection you need. If so, use that instead of a noncompete, as that will likely be enforceable.

Finally, review your existing noncompete, nonsolicit and nondisclosure agreements to see if these comply with applicable state law and if there is adequate protection in the event the noncompete is banned. If not, or if you need assistance, please contact us or call your attorney.

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