Labor & Employment Blog

If you, like most employers, have included non-disparagement or confidentiality provisions in your severance and settlement agreements, you will be interested in a recent decision from the National Labor Relations Board (“NLRB”). On February 21, 2023, in a 4-1 decision the NLRB held an employer violates Section 8(a)(1) of the National Labor Relations Act (“NLRA”) when it offers a severance agreement with non-disparagement and confidentiality provisions that would restrict employees’ exercise of their NLRA rights. While some employers mistakenly believe the NLRA ...

Today, the United States Supreme Court affirmed the decision of the Fifth Circuit Court of Appeals in Hewitt v. Helix Energy Solutions Group, Inc., holding that an oil rig supervisor paid a day rate is entitled to overtime pay because a day rate is not a “salary” within the meaning of the federal wage law—the Fair Labor Standards Act (“FLSA”). The FLSA requires employers to pay employees overtime pay of at least 1.5 times the employee’s regular rate of pay for all hours worked over 40 hours in a workweek. However, certain employees are exempt from overtime. Companies ...

Yesterday, the FTC hosted a virtual forum during which six speakers from various industries provided their reactions to the proposed ban on non-compete agreements. The President of a Tennessee logistics company who founded the website www.endnoncompetes.com offered his opinion that non-competes are unnecessary and used to bully young people. He proudly announced that his company currently is violating around 100 non-compete agreements. A former Chief Human Resources Officer who now represents a public policy organization that advises chief human resources officers ...

Late last year, the Federal Trade Commission issued a policy statement that superseded its prior policy statements and guidance concerning the FTC’s interpretation of the scope and meaning of unfair methods of competition as addressed in the Federal Trade Commission Act (“FTC Act”). The FTC indicated it would no longer follow the “rule of reason” inquiry and, instead, focus on trying to stop unfair methods of competition “in their incipiency based on their tendency to harm competitive conditions.” The FTC stated an unfair method of competition need not cause ...

In a recent Shale Magazine article, Kellen Scott, shareholder in our Houston’s Labor & Employment and Commercial Litigation practices, discussed the U.S. House of Representatives passing the Forced Arbitration Injustice Repeal (FAIR) Act, H.R. 963. The bill, if enacted into law, would void all pre-dispute mandatory arbitration agreements in employment, antitrust, consumer, and civil rights matters. The FAIR Act also purports to eliminate pre-dispute class and collective action waiver provisions. 

If the FAIR Act were to pass in the Senate and be signed into law, it would ...

In a recent Houston Business Journal article, Kellen Scott, shareholder in our Houston’s Labor & Employment and Commercial Litigation practices, discussed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 passed by the U.S. Congress in February. The bill, since signed into law by President Biden, invalidates pre-dispute arbitration clauses and restricts the enforceability of other agreements between businesses and individuals.

According to Scott, the Act amends the Federal Arbitration Act, to (i) prohibit enforcement of certain ...

OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard

Effective today, January 26, 2022, the Department of Labor’s Occupational Safety and Health Administration (OSHA) has withdrawn the COVID-19 vaccination and testing emergency temporary standard (ETS) issued on November 5, 2021, which required all employers with 100 or more employees to implement either a mandatory COVID-19 vaccination policy or a policy allowing employees to undergo weekly COVID-19 testing and face covering as an alternative to vaccination.

Yesterday, OSHA filed a motion to dismiss the ...

On January 13, 2022, the U.S. Supreme Court issued two highly anticipated opinions on the COVID-19 vaccination rules mandated by the Department of Labor’s Occupational Safety and Health Administration (OSHA) and the Centers for Medicare and Medicaid Services (CMS). Challenges to those rules had opposite outcomes, as set out in the opinions. The Court stayed OSHA’s Emergency Temporary Standard for COVID-19 Vaccination and Testing (OSHA ETS), but allowed the CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (CMS Rule) to move forward.

Background

Shortly after Chamberlain Hrdlicka’s update concerning the vaccine-or-test Emergency Temporary Standard (“ETS”) that the Occupational Safety and Health Administration (“OSHA”) announced for employers with 100 or more employees, the Fifth Circuit Court of Appeals stayed enforcement of the ETS. The three-judge panel noted the legal filings “give cause to believe there are grave statutory and constitutional issues” with the ETS. The Fifth Circuit’s stay is in place while the Court considers a motion to permanently stop the ETS from taking effect. The ...

The Occupational Safety and Health Administration (“OSHA”) released an Emergency Temporary Standard (“ETS”) for COVID-19 Vaccination and Testing on November 3, 2021, which applies to most employers with 100 or more employees. OSHA may issue an ETS when it determines workers are in grave danger due to exposure to toxic substances, agents, or new hazards.

What does the ETS require?

Covered employers are required to implement a mandatory vaccination policy. Alternatively, employers may implement a policy providing all employees the option to be fully vaccinated or to ...