Ogletree Deakins

Quick Hits The FTC will hold an Open Commission Meeting on April 23, 2024, on its proposed rule that would ban noncompetes. The proposed rule would prohibit the use of noncompete clauses and preempt all state laws providing lesser protection than the proposed rule. The proposed rule would apply to any contractual term that functions to prevent a worker from seeking or accepting employment or operating a business, after leaving…

Quick Hits Minnesota lawmakers are working on bills addressing drug testing, earned sick and safe time, pay transparency in job postings, restrictive employment covenants in service contracts, and unemployment benefits for striking workers. The legislative session adjourns on May 20, 2024. In our March 27, 2024, legislative update article, several key bills were previewed, many of which have made it to an omnibus bills, along with other articles that may…

Quick Hits Federal financial regulators are targeting employers for employees’ use of personal text messages or off-channel communications to discuss business, alleging it may violate recordkeeping rules. The actions raise concerns for financial employers given the increased use of personal electronic communications platforms and of the popularity of bring-your-own-device policies. The actions further highlight federal regulators’ push to incentivize employers to self-report potential legal violations by providing leniency in penalties. …

Quick Hits The EB-1, EB-2, and EB-3 final action dates will remain unchanged for all countries of chargeability. USCIS has confirmed it will accept employment-based adjustment of status applications based on the final action dates chart for the May 2024 Visa Bulletin. The EB-4 Certain Religious Workers category is extended until September 29, 2024. The May 2024 Visa Bulletin does not show any advancement in final action dates and dates…

Quick Hits USCIS recently announced that it has updated its definition for “Schedule A, Group II” occupations. USCIS has now clarified that Schedule A, Group II “Sciences or Arts” occupations include occupations in any field of knowledge and/or skill for which colleges and universities commonly offer courses leading to a degree. This clarification aligns USCIS’s policy with DOL regulations. In connection with the current administration’s push to retain STEM talent,…

Quick Hits USCIS extended the automatic extension period for eligible EADs from up to 180 days to up to 540 days for applicants who timely and properly filed their Form I-765 applications. The eligible applicants are those who filed their Form I-765 1) on or after October 27, 2023 and if the application is still pending, on April 8, 2024; or 2) on or after April 8, 2024 and on…

Quick Hits Momentum to classify NCAA athletes as employees may impact international athletes’ immigration status and jeopardize their participation in NCAA sports. Most student visas limit holders’ ability to work while studying in the United States. Changes to U.S. immigration law may be necessary to allow international athletes to continue to participate in NCAA sports moving forward. In the Dartmouth College case, an NLRB regional director found that the players…

Quick Hits Washington’s legislature recently concluded a productive 2024 legislative session with approximately 340 bills receiving passage by both houses and moving on to the governor’s desk. Notable newly enacted pieces of legislation include a measure that restricts employers’ ability to speak to employees on political or religious matters, a statutory expansion of the classes protected by Washington’s Equal Pay and Opportunities Act, and amendments to the state’s paid sick…

The release of selections occurred less than a week after the conclusion of the H-1B cap registration period. This year’s H-1B lottery selections were conducted over a span of five days and concluded on April 1, 2024, when USCIS announced that it had received enough electronic registrations for unique beneficiaries during the initial registration period. Quick Hits USCIS has yet to disclose the total number of H-1B registrations received for…

Quick Hits Pennsylvania amended its tax law to make amounts contributed to dependent care assistance excludable for income tax purposes. The change aligns Pennsylvania with the federal treatment and is retroactive for the 2023 tax year. Employers may have withheld taxes on dependent care assistance contributions and may have issued Forms W-2 that overstated income. On December 13, 2023, Pennsylvania enacted House Bill (HB) 1300, which changed the state’s treatment…

Quick Hits Florida enacted legislation that will ease employment restrictions for minors sixteen and seventeen years old. The law gives parents and school superintendents the ability to waive the limitation on minors working only thirty hours per week while school is in session. The changes take effect on July 1, 2024. The enacted legislation, House Bill (HB) 49, amends Florida’s Child Labor Law to ease some of the restrictions on…

Quick Hits The respective paid sick leave laws of the State of Washington and the City of Seattle have recently been clarified and updated. Under Washington’s paid sick and safe leave law, only construction workers who are directly engaged in construction work by performing “service, maintenance, or construction work on a jobsite, in the field or in a fabrication shop using tools of the worker’s trade or craft” are eligible…

Quick Hits The FDIC released proposed revisions to its guidelines for reviewing bank mergers. The proposed revisions include a prohibition on banks using noncompete agreements with employees of units that are divested as part of the merger. The FDIC is seeking comments on the proposed revisions. On March 21, 2024, the FDIC unveiled proposed revisions to its Statement of Policy (SOP) on Bank Merger Transactions, which was last amended in…

Quick Hits Georgia allows patients with specific health conditions to use low-THC oil-based products that may contain up to 5 percent THC; meanwhile, over-the-counter CBD oil is limited to a maximum of 0.3 percent THC. Georgia law does not limit the methods or means of drug testing available to employers, nor does Georgia law infringe on an employer’s ability to take adverse action against an employee who fails a drug…

Quick Hits The AI Act’s risk-based approach subjects AI applications to four different levels of restrictions and requirements, including “unacceptable risk,” which are banned; “high risk”; “limited risk”; and “minimal risk.” The AI Act treats the use of AI in the workplace as potentially high-risk. The AI Act is expected to be published soon and go into effect in spring or early summer this year. While the AI Act does…

Quick Hits Mexico’s Ministry of Labor and Social Welfare (Secretaría del Trabajo y Previsión Social) (SLSW) recently enabled a module on the REPSE website in order to renew licenses for providers of outsourced specialized services. REPSE license holders have three months to complete the renewal process, with the start date depending on the year and month that a holder started the prior REPSE enrollment. The SLSW has published a chart…

Quick Hits The Minnesota Legislature is considering competing bills that would amend the statewide earned sick and safe time law. The legislature has also introduced bills that would hike punitive damages for violations of the Minnesota Human Rights Act and require employers with thirty or more employees to include salary ranges in job postings. Additional legislation would bar staffing agencies from restricting their employees from working directly for their customers,…

Quick Hits On December 22, 2023, the Cal/OSHA Standards Board published additional modifications of the draft indoor heat illness prevention standard. The Standards Board’s agenda items showed that the Standards Board had planned to consider a version of the regulation that was essentially unchanged from a December 22, 2023, draft. The Cal/OSHA Standards Board announced at the start of the meeting that the agenda item was pulled. After protests by…

Quick Hits OSHA’s “walkaround rule” has been approved by OIRA for finalization. The rule allows third parties, potentially not connected with the workplace, to accompany a CSHO during the inspection process/facility walkaround, if the CSHO considers such parties “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” The rule will take effect thirty days after its publication in the Federal Register. The rule (more…

Quick Hits Effective February 13, 2024, the DOJ increased civil monetary penalties, including those related to immigration-related violations. While these increases are not as substantial as the immigration benefit request fees increase announced in January 2024, employers may still want to be aware of them. The increase adjusts for inflation, in accordance with the Bipartisan Budget Act of 2015. U.S. employers that employ a foreign worker or workforce are subject…

Quick Hits The NCAA March Madness men’s and women’s college basketball tournaments can be a distraction for employees that harms overall productivity. The rise of online sports betting has the potential to further increase the distraction of March Madness and raise concerns with gambling regulations and employer policies. From office pools to streaming games at work, employers are tasked with navigating the legal landscape to ensure compliance and maintain a…

Quick Hits OSHA’s proposed Emergency Response Standard—an overhaul of the decades-old Fire Brigades Standard—would apply to firefighting, emergency medical services, and technical search and rescue. The proposed standard’s lack of specific definitions, action levels, and exposure limits makes its compliance expectations less than clear for covered employers. The proposed standard’s framework may impose additional compliance, implementation, and operational challenges on ESOs and WEREs/WERTs while impacting their ability to recruit and…

Quick Hits The Eleventh Circuit ruled a Florida law that would prohibit employers from holding mandatory workplace training programs that discuss certain DEI-related topics was unconstitutional under the First Amendment. The restriction was part of a broader law known as the “Stop WOKE Act” signed by Governor Ron DeSantis in April 2022 to limit DEI in education and employment. The Eleventh Circuit rejected arguments that the law sought to stop…

Quick Hits A federal district court in Tennessee recently issued a preliminary injunction enjoining enforcement of the NCAA’s NIL-recruiting ban with respect to student-athletes. The court found that the ban limited student-athletes’ negotiation leverage and prevented them from understanding “their true NIL value.” The court held that the recruiting ban likely violated federal antitrust law and that irreparable harm would be done to the states’ student-athletes if the ban were…

Quick Hits Covered construction contractors may be required to provide additional data and documentation in response to the construction compliance review scheduling letter and itemized listing. Covered construction contractors may be required to provide additional information on Form CC-314 about new construction contract awards that exceed $10,000. Comments on the proposals are due no later than April 26, 2024. As set forth in its notice and comment request of February…

Quick Hits The Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP) was set up in 2006 by the Ministry of Manpower, the National Trades Union Congress, and the Singapore National Employers Federation, to promote the adoption of fair, responsible, and progressive employment practices in Singapore. Since its inception, TAFEP has slowly gained traction with employees and job seekers alike as an avenue for redress of concerns regarding harassment and…

Quick Hits The Supreme Court of Ohio issued a ruling confirming that Ohio municipalities did not violate the U.S. Constitution or the Ohio Constitution by taxing remote workers who lived outside of city limits during the COVID-19 pandemic. The ruling applies only to a temporary state law applicable during the COVID-19 pandemic that has since been lifted. The Ohio Supreme Court held that the law did not violate the Due…

Quick Hits A federal district judge in Vermont ruled that the ADA does not protect medical marijuana usage. Under the federal Controlled Substances Act, marijuana has “no currently accepted medical use” and therefore does not fall under the supervised use exception of the ADA. Marble Valley Regional Transit District terminated Ivo Skoric’s employment after he failed a random drug test. According to his lawsuit, Skoric has a medical marijuana prescription…

Quick Hits Despite repeated clarification regarding what the U.S. Departments of Labor, Health and Human Services, and the Treasury consider to be reasonable medical management techniques, the departments continue to identify plans that are out of compliance, creating barriers to contraceptive coverage. Medical management techniques within a specific contraceptive category will be considered reasonable if the plan covers, without cost sharing, all FDA-approved contraceptive drugs and drug-led devices, other than…

Quick Hits The California Office of the Attorney General has been actively enforcing the CCPA since July 2023, and the California Privacy Protection Agency has indicated that it will take a very active role in CCPA enforcement. Covered businesses may be subjected to civil penalties or administrative fines of $2,500 for each violation of the CCPA and $7,500 for each intentional violation, with penalties up to $7,500 for privacy violations…

Quick Hits In a recent decision, a Massachusetts Superior Court judge held that a percent-of-profit incentive payment under a profit-sharing scheme is not a commission subject to the Wage Act. The court reasoned that an executive’s profit-sharing incentive was tied to the company’s profits, but not to revenue that he personally generated, and therefore he did not have a viable claim under the Wage Act. The decision clarifies that, although…

Quick Hits The EO directs the U.S. Department of Justice (DOJ), in conjunction with the U.S. Department of Homeland Security, to set standards addressing access to Americans’ sensitive personal data by hostile nations and their affiliates through commonly utilized channels like employment, investment, vendor, and other commercial relationships. The EO also seeks to stem the bulk sale of sensitive personal data by commercial data brokers and other commercial entities to…

Quick Hits Employer monitoring of workers must be carried out in a way that is lawful and fair to the workforce so as not to infringe on the rights of data subjects, the UK Information Commissioner’s Office said in updated guidance. In order to lawfully collect and process information from monitoring workers, employers must identify one of the six lawful bases under the UK GDPR: consent, contractual basis, legal obligation,…

Total U.S. retail sales in June 2023 were down 1.2 percent from June 2022, according to data the U.S. Census Bureau released in September. In July 2023, a U.S. Bureau of Labor Statistics (BLS) release showed compensation costs for civilian workers increased 1.0 percent for the three-month period ending in June 2023. Have you ever wondered where government agencies get such numbers? These agencies collect data, not only about people…

On September 14, 2023, the Internal Revenue Service (IRS) released Employee Retention Credit (ERC) guidance placing a moratorium on processing new ERC claims due to a surge in questionable claim submissions. Claims already submitted will continue to be processed, but at a slower rate due to detailed compliance reviews. The guidance included a caution about using entities that aggressively market and promote the submission of ineligible ERC claims, explained the…

University athletic administrators all across the country are welcoming back their athletes for the 2023–2024 athletic season. Athletes and coaches alike will meet with compliance administrators for a refresher on National Collegiate Athletic Association (NCAA) bylaws, nutritionists to discuss proper nutrition, and even media relations staff to discuss media obligations. What sometimes can be forgotten in the hustle and bustle of college athletics—and the desire to get to the practice…