Labor & Employment Developments Blog

In this holiday episode, we take a look back at the biggest employment law issues covered on the podcast in the past year and consider whether employers have been naughty or nice.

With the passage of Issue 2, Ohio becomes the 24th state to legalize the recreational use of marijuana. An even larger number of states have legalized medical marijuana use. What does this mean for employers in Ohio and in other states that have legalized marijuana on some level? How do these laws impact employers' efforts to maintain a drug-free workplace?

Two new laws have gone into effect in 2023 that require many employers to change their approaches to pregnant and nursing workers. The Pregnant Workers Fairness Act (PWFA) went into effect in June and requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” 

The Family Medical Leave Act (FMLA) continues to present difficult compliance issues for employers.  In this episode, four FMLA traps that may ensnare unwary employers are discussed, including:

1. FMLA Coverage Trap(s);
2. The Termination Upon Return From Leave Trap;
3. The Indefinite Intermittent Leave Trap; and
4. The Futile Leave Request Trap.

Listen in and find out how your business can avoid these traps.

You can listen here.

Documents referenced in this episode:

• DOL Opinion Letter (FMLA2023-1-A)
• Milman v. Fieger & Fieger P.C.

If you follow the news, you are probably aware that non-compete agreements are under attack on several levels. This episode will consider three primary sources of these attacks on non-compete agreements:

1. The Federal Trade Commission (FTC) Proposed Rule banning non-compete agreements;
2. The NLRB General Counsel Memorandum GC 23-08 (May 30, 2023) indicating that non-compete agreements may violate section 7 of the National Labor Relations Act; and
3. State laws banning or curtailing enforcement of non-compete agreements.

See the FTC Proposed Rule here.

See the NLRB General Counsel ...

Employers seeking to enforce non-compete agreements against their former employees will face a new hurdle following the latest news out of Washington, DC. National Labor Relations Board (“NLRB”) General Counsel Jennifer A. Abruzzo, who is responsive for the investigation and prosecution of unfair labor practice cases and for the general supervision of NLRB field offices, released a memorandum today announcing her interpretation that many non-compete agreements violate the National Labor Relations Act (“NLRA”) and thus are not enforceable. She has directed NLRB field offices to submit cases involving non-compete agreements for further investigation.

There are several common misperceptions about employment law that seem to persist over time - employment law myths if you will. In this episode, 5 common employment law myths are exploded.

Like everything else, employment law and employment litigation is driven by economics. Matters such as the cost of having dedicated human resources professionals and how attorneys are paid by plaintiffs and defendants can all have a significant role in employment litigation and litigation avoidance. There is also the question of whether employers should buy Employment Practices Liability Insurance (EPLI) to protect themselves against potential losses. These topics and more will be discussed in this episode.

On February 21, 2023, the National Labor Relations Board (NRLB or the “Board”) issued a decision in Mclauren Macomb, 372 NLRB No. 58 (2023), holding that severance agreements that contain broad confidentiality and/or non-disparagement provisions violate Section 7 of the National Labor Relations Act (NLRA or the “Act”) because they tend “to interfere with, restrain or coerce employees’ exercise of the rights guaranteed in Section 7” of the Act.  Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”  

Workplace violence is in the news again. It is a difficult and frightening problem that implicates several aspects of employment law. This episode covers several thoughts on the issue of workplace violence and considers steps employers may take to lessen the risk of an incident, particularly in the context of employee terminations.