Employment & Labor

On April 23, 2024, the Federal Trade Commission (“FTC”) issued a Final Rule which provides that it is an “unfair method of competition” for employers to enter into non-compete clauses with their workers after August 21, 2024—or 120 days after the Final Rule is published in the Federal Register.  The Final Rule is available here.  The Final Rule was issued after the FTC received more than 26,000 public comments in response to its Notice of Proposed Rulemaking issued in January 2023. While the ban is scheduled to take effect 120 days after the Final Rule is published in the Federal […]

I. Introduction and Executive Summary On December 14, 2023, a legal earthquake hit Virginia when the Supreme Court of Virginia issued its decision in Vlaming v. West Point School Board, 895 S.E.2d 705 (Va. 2023).  But, to the extent there is a “legal” Richter scale, that earthquake has yet to register.  Headlines covering the decision noted the result dealing with a hot-button social issue: a teacher fired for refusing to use a student’s preferred pronouns on religious grounds could continue to pursue his case against the school board for alleged violations of constitutionally protected religious rights.  But that context has […]

On February 8, 2024, a unanimous United States Supreme Court ruled that whistleblowers bringing a retaliatory discharge claim under the Sarbanes-Oxley Act (“SOX”) are not required to prove that the employer acted with “retaliatory intent,” but need only prove that their “protected activity” was a “contributing factor” in the employer’s unfavorable personnel action.  The ruling reversed a Second Circuit decision which had overturned a $900,000 jury verdict in favor of a former employee against UBS Securities, LLC.[1] The Court’s ruling is yet another disappointment for businesses hoping for greater judicial protection from the growing number of retaliation claims.[2] Justice Sotomayor’s […]

As of July 1, 2020, Virginia became one of twelve (12) states that imposed a ban  on the use of non-compete agreements for “low wage employees.”[1] At the time of adoption, the salary threshold for a “low wage employee” was $59,124 annually (or $1,137 per week). This salary threshold was not fixed by statute, but instead, the General Assembly adopted a moving target definition that ties the “low wage” salary threshold to the “average weekly wage of the Commonwealth” as determined by the Virginia Employment Commission. The practical effect is that a new average weekly wage is calculated before or […]

Earlier this month, the Department of Labor (DOL) issued a new final rule intended to be effective March 11, 2024 that will address when a worker can be properly classified as an independent contractor. The misclassification of workers has been an issue of concern for several years, especially for worker-right advocates, which led to new legislation being passed in Virginia and many other states.[1] On the other hand, many business groups, especially those which rely heavily on independent contractors, such as those in the trucking and construction industry, and others in the gig-economy, are concerned that the new regulations unfairly […]