Research shows that golf can be good for business. But the sport lacks diversity. Learn how women and people of color can use golf to potentially advance their careers. https://www.shrm.org/resourcesandtools/hr-topics/behavioral-competencies/global-and-cultural-effectiveness/pages/fore-how-golf-can-influence-diversity-at-work.aspx

Mike Greco, Regional Managing Partner of Fisher Phillips’ Denver office, testified yesterday before the Colorado Senate Business, Labor & Technology Committee about HB 22-1317, which is pending legislation that would significantly limit the circumstances under which restrictive covenants may be used in Colorado. The legislation passed the House on April 18thand is now on the verge of being passed by the Senate. If no further changes are made, it will bring a virtual end to non-competes in Colorado with serious consequences for non-compliance.

Greco’s testimony before the Senate comes on the heels of his April 6, 2022 testimony before the Colorado House Judiciary Committee. During both sets of testimony, he urged lawmakers to give careful attention to the impact the legislation will have on customer non-solicitation agreements intended to protect employers’ trade secrets.

The proposed legislation would no longer allow for employers to use non-competes, including non-solicitation agreements, for employees earning less than $101,250 a year in 2022. In his testimony, Greco emphasized that employers often use non-solicitation agreements to protect trade secrets, and he explained that “a secret is a secret,” and a “highly compensated employee can compromise a secret, and so can a non-highly compensated employee.” Thus, he urged the House and Senate to amend the bill to allow employers to use non-solicitation agreements to protect trade secrets without regard to the level of wages earned by workers.

Greco pointed to ten other states in the country that currently have statutes limiting the use of non-competes for low wage earners.  In his House testimony, he noted that “of these ten states, at least eight of them still allow non-solicitation agreements without regard to the level of wages earned by workers.” Thus, Greco is urging Colorado lawmakers to follow suit and allow non-solicitation agreements without a wage threshold. And, if they end up deciding a wage threshold is required, Greco asked lawmakers to at least consider lowering it with respect to non-solicitation agreements only.

Yesterday, the Senate Committee voted to advance the legislation to the full Senate, but noted they would continue to consider the issues addressed by Greco.  If the legislation is passed as currently written, Governor Polis will likely sign it, and it will become effective in early August 2022. All restrictive covenants drafted after the effective date – including non-competes, non-solicitation agreements, and similar variations – will be void unless they meet the statutory requirements. At this point, employers will face serious consequences for non-compliance – including a $5,000 penalty per employee if they enter into, attempt to enforce, or present to current or prospective workers any non-compete that is void under the new statute. In addition to actual damages and penalties, workers and prospective workers may obtain injunctive relief and recover reasonable attorneys’ fees and costs. The Attorney General is likewise authorized to sue for relief under the statute.

Greco has litigated non-compete cases in nearly all fifty states, including dozens of states that have non-compete statutes in place. Thus, in addition to his testimony, he will continue to monitor this legislation and will stand ready to advise employers on how they can prepare for this dramatic change to the non-compete landscape.

Click here to listen to Greco’s April 6, 2022 testimony before the House.

Click here to listen to Greco’s April 27, 2022 testimony before the Senate.

In the weeks leading up to and during the historic confirmation hearings of Judge Ketanji Brown Jackson to the Supreme Court, the first Black female justice was repeatedly recognized by a number of senators for being so “articulate” while being questioned. The “compliment” resonated at the same frequency as fingernails screeching across a chalkboard for many listeners.

Littler Principal Cindy-Ann Thomas and her special guest, Professor Inte’a DeShields:

https://www.littler.com/publication-press/publication/articulate-compliment-we-need-talk

When the design of employers’ health benefit plans is chiefly driven by efforts to lower their costs, employees may suffer the consequences, according to opponents of stringent health care cost-containing measures. https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/are-health-care-cost-controlling-tactics-impairing-employees-health.aspx

As employers thank their clerical and administrative staff on Administrative Professionals Day, new research by the Society for Human Resource Management shows that these professionals are valued by their organizations.

The National Labor Relations Board is actively looking to modify the legal standards that for the past five years have provided a commonsense solution for evaluating the legality of commonplace workplace misconduct rules. And if recent events are any indication, both unionized and non-unionized employers alike should be prepared for a new day in which your handbook rules will once again be unreasonably scrutinized – meaning your policies may need to be rewritten to ensure compliance with the new standards. What is happening at the Labor Board and what should you do to prepare for this inevitable swinging of the pendulum?   

The State of the Law Today

Under its Boeing standard established in 2017, the Board examines facially neutral policies and handbook provisions based upon a pair of competing considerations: (1) the nature and extent that the rule would potentially impact NLRA rights; and (2) the legitimate justifications associated with the rule. Under this analysis, the agency attempts to classify rules into one of three categories:

  • Category 1: Rules that are lawful to maintain because, when reasonably interpreted, they either do not prohibit or interfere with the exercise of NLRA rights or any adverse impact is outweighed by the articulated justifications for administering the rule. Civility rules requiring employees to maintain harmonious interactions and relationships are offered as a specific example.
  • Category 2: Rules that must be evaluated on a case-by-case basis to see whether they prohibit or interfere with NLRA rights and, if they do, whether any adverse impact is outweighed by legitimate business justifications. Investigative confidentiality rules that expand beyond open investigations are an example of a Category 2 rule.
  • Category 3: Rules that are unlawful because they expressly limit or prohibit protected conduct without any overriding justification. Rules prohibiting workplace discussions of wages or benefits is offered as an example.

What Was the Prior Standard?

Prior to this standard, the Board applied a broader standard that asked only whether an employee could “reasonably construe” the rule at issue to prohibit the exercise of protected rights. Under this Lutheran Heritage standard, some workplace rules were deemed to be “inherently coercive” of those rights, while others were overturned if implemented in direct response to union activity.

This vague standard gave rise to the invalidation of hundreds of workplace civility rules – many of which might reasonably be viewed as the application of commonly accepted principles governing workplace conduct. After all, workplace civility rules generally require employees to treat their coworkers with dignity and respect. Taken to its logical extreme, virtually any such rule could (at least in the eyes of some) be “construed” to interfere with Section 7 rights under certain circumstances. But the obvious benefit to these rules is to ensure that employees treat their peers as they would presumably wish to be treated themselves.

What is Happening Now?

The Board recently requested advocacy groups and other interested parties weigh in by filing amicus briefs in a case called Stericycle, Inc. to address the following questions:

  • Should it continue to apply the three-part Boeing standard for determining whether a facially neutral rule violates the act?
  • Should the rule be modified to: account for the possibility that this standard “chills” employees in the exercise of Section 7 activity; properly allocates the burden of proof; and properly balances employee rights with legitimate business interests?
  • Should the Board continue to uphold workplace rules regulating investigative confidentiality, non-disparagement, and outside employment?

Although we are still awaiting a definitive answer to these questions, it seems only a matter of time before we can expect the NLRB to issue a decision responding with a resounding “No,” Yes,” and “No,” respectively. We expect the Board to replace the Boeing test with a variation of its prior Lutheran Heritage standard. Any such decision would likely adopt a similar “reasonably construe” analysis that separately examines every workplace rule to determine whether it could potentially chill Section 7 rights.

Among other things, this means that employers should prepare for the following potential changes:

  1. The Board will likely invalidate previously valid workplace rules imposing confidentiality restrictions against the backdrop of workplace investigations.
  2. The Board will probably strike down non-disparagement rules on the basis that they can be reasonably construed to interfere with employee rights to seek outside support concerning their employment terms and conditions. 
  3. The Board will likely find that rules prohibiting moonlighting or outside employment are unreasonable given that they could restrict the ability of paid union “salts” to enter your workforce and begin an organizing drive.

 How Should You Prepare for the Change?

No one knows exactly what the new standard will be at this point. The new standard may ultimately mirror the old one, but that is not guaranteed. It is entirely possible that a Board majority will choose instead to craft an entirely new standard.

Nevertheless, you should carefully monitor the Stericycle case so you are standing on “go” to adapt change your civility and other handbook rules governing workplace misconduct to satisfy the new standard. When that day comes, we can certainly expect that a multitude of policies that have been deemed lawful for the past five years will suddenly be deemed impermissible by the NLRB.

Conclusion

We will continue to monitor this situation as it unfolds. Make sure you are subscribed to Fisher Phillips’ Insight System to get the most up-to-date information direct to your inbox. Should you have any questions on the implications of these developments and how they may impact your current workplace rules and policies, please do not hesitate to contact your Fisher Phillips attorney, the authors of this Insight, or any member of our Labor Relations Group for additional guidance.

With so many sessions to attend at the Society for Human Resource Management Annual Conference & Expo, knowing which ones to attend can be challenging. Planning your SHRM22 itinerary presents the same sort of challenge, Jamie Bosley, SHRM’s vice president of event strategy and experience, offers some advice. https://www.shrm.org/hr-today/news/hr-news/pages/advice-for-planning-your-shrm22-itinerary.aspx

Washington employers will soon need to include salary and benefits in all job postings thanks to an amended law that was recently signed into effect by Governor Inslee. Starting January 1, 2023, businesses with 15 or more workers will no longer be able to simply wait until the time a job offer is made to provide such information, but instead include it up front at the earliest possible point. This effort to promote pay equity is similar to a law that went into effect in Colorado last year and one about to take effect in New York City. This could be very consequential for Washington’s already-turbulent labor market – what do you need to know to prepare and comply? Here’s a three-step compliance plan to get you ready for the big change.

What is Changing? 

In 2018, Washington state joined the pay transparency trend and added myriad amendments to its Equal Pay and Opportunities Act. In addition to pay equity requirements, there were also pay transparency provisions that protected employees’ rights to discuss their compensation freely without fear of retaliation. Those amendments all remain intact.

The 2019 amendments to the EPOA additionally required employers to disclose a minimum wage or salary for an applicant’s position. Such a disclosure was only required after an employee had been offered the job, and even then, only upon the employee’s request. That law applied to internal postings and promotions, only applied to businesses with 15 or more employees, and let individuals sue or file a complaint with Labor & Industries.

These new amendments repeal some of those 2019 amendments. Specifically, the new law will soon require employers to disclose a lot more information for new job applicants. Starting January 1, 2023, employers must:

  • provide a wage scale or salary range for each job posting (as opposed to just a minimum);
  • include a description of all benefits and compensation to be offered in the posting (as opposed to just wage or salary); and
  • publicly advertise these disclosures along with the job ad (as opposed to only after an offer and upon request).

Different Set of Standards for Internal Job Postings

Other parts of the 2019 disclosure rules remain intact. Notably, while the 2022 amendments will change how employers externally advertise job openings, they will still be bound by the 2019 rules when it comes to internal postings, promotions, and transfers. So, for these types of positions, employers are only required to provide a salary range or wage scale upon request —not in the posting. The minimum employee threshold and the remedy provisions will also remain intact.

How Can Washington Employers Comply?

Given these differences, you should develop one approach for external postings and another approach for internal postings.

External Job Postings

For external postings, the new law will require you to disclose a minimum and maximum compensation for any position. The law will apply to any solicitation you use to attract applicants, including printed job announcements or digital job board postings. The posting must also include a description of other benefits and compensation to be offered. It applies to job ads posted through recruiters and third parties as well.

Internal Job Postings

For internal postings, the rules have been slightly modified. The employer is required to provide wage scale or salary information only “upon request of an employee offered an internal transfer to a new position or promotion.” But the law eliminated the prior option of providing minimum wage or salary expectation instead if “no wage scale or salary range exists.” In other words, there must be a wage scale or salary range for the position available in case the internal candidate requests it.

What Should You Do?

Except for the smallest of businesses, employers across the state of Washington will need to reckon with the requirement of disclosing salary information in job listings starting on January 1, 2023. Here are three steps you should consider to prepare for the new law:

  1. Develop a plan to create a wage scale or salary range for all positions and how to make necessary adjustments. This may involve working with a compensation analyst or conducting a compensation audit.
  2. Develop a process by which you will consistently publish that information in connection with external job postings. If you use third-party hiring services or recruiters, make sure you communicate clearly with them about their need to comply with this new law when it comes to your postings.
  3. Consider an internal audit of current employee salaries to make sure there are no significant discrepancies. At best, such anomalies could lead to discontent and employee attrition once you must start including salary information on job listings. At worst, they could lead to an equal pay lawsuit. Economic pressures may already be prompting you to reconsider your wage scales and salary ranges: inflation, supply chain woes, and the so-called “Great Resignation” have all caused businesses to find new ways to recruit and retain talent — up to and including raising wages. This new law coming into effect is a perfect opportunity to launch a pay equity audit to ensure that your entire workforce is compensated fairly and appropriately. While Washington’s law doesn’t provide a direct incentive to do so, some states provide a safe harbor for changes made in connection with an audit (check out the FP Pay Equity Map here for more details). You should also give consideration about whether such an audit would be best conducted by working with your attorneys in order to preserve confidentiality when analyzing potential legal claims.

Conclusion

We will monitor developments related to this impending new law, so make sure you are subscribed to Fisher Phillips’ Insight System to get the most up-to-date information directly to your inbox. If you have questions about the salary transparency law or your related policies, contact your Fisher Phillips attorney, the authors of this Insight, or any attorney in our Seattle office or our Pay Equity Practice Group

One outcome of the COVID-19 pandemic is that many organizations are updating how they approach bereavement. They are rethinking how much time off is necessary, what…