Back to the Drawing Board: The Evolving Landscape of Employer Rights and Obligations

There has been an explosion of expansions on workplace prohibitions, employee rights and mandates across the country that may make heads spin for employers with a multi-state workforce. Further, in this new age where out of state remote working has become the norm, employers may unintentionally have obligations in multiple jurisdictions, with inconsistent requirements. Below are just a few examples of employee rights and prohibitions that vary greatly by jurisdiction.

Non-competes: Non-compete agreements are under attack on a national level as evidenced by the very recent FTC proposal to ban non-competes. The public comment period has ended, and while we await the final rule (and significant legal challenges to same), employers need to know what the rules are in their jurisdictions as well as the jurisdiction where the employee is located.  Multiple jurisdictions have already banned noncompete agreements for “low wage” workers, though the definition of low wage is inconsistent and sometimes surprising. For example, in Illinois, non-competes are banned for low wage employees, defined as employees earning less than $75,000. In Oregon, this number is $100,533, while in Virginia and Maryland, the numbers are $69,836 and $31,200 or less, respectively. This inconsistency in what is considered “low wage” requires employers to know the threshold that applies to each proposed agreement.

Severance Agreements: The recent National Labor Relations Board (NLRB) decision finding non-disparagement and confidentiality provisions in severance agreements (even as to the amount of the settlement) to be violations of the National Labor Relations Act (NLRA) is another attack on employer protections. Keep in mind that this prohibition should not apply to severance agreements entered into with supervisors, potentially requiring different agreements dependent on the position held by the employee. Some jurisdictions, like Washington State, already have parameters on the scope of confidentiality and non-disparagement provisions in severance agreements prohibiting provisions that restrict an employee from openly discussing conduct or a legal settlement involving conduct reasonably believed to be unlawful, but the NLRB decision goes much further. These restrictions are in addition to what each state requires in terms of geographic and temporal parameters.

Training:  There has been an uptick in legislatively mandated training. For example, the District of Columbia (D.C.) requires all businesses that have a single tipped-wage employee to have sexual harassment training for all employees. D.C. also requires training of all employees and contractors of long-term care facilities as to rights of LGBTQ seniors and seniors with HIV. California, Connecticut, Delaware, Illinois, Maine and New York all have varying requirements for sexual harassment training in the workplace.

Social Media:  Depending on the jurisdiction, there may be restrictions on employer access to employee or applicant social media accounts. In Virginia, employers are prohibited from requiring an applicant or employee to disclose their log in credentials for social media platforms and from requiring an employee to add another employee or supervisor to their list of contacts to obtain access to content. Similar restrictions exist in at least twenty-four other jurisdictions.

Wage Transparency: Wage transparency is on the rise. Employers should think twice about prohibiting an employee from discussing wage information. In addition to potentially violating the NLRA, state specific laws may make prohibiting sharing of such information unlawful. And, while employees can choose to disclose their compensation to other employees, many jurisdictions bar employers from asking prospective employees for information regarding wage history including, without limitation, D.C., Delaware, Illinois, Pennsylvania, Virginia, and Maryland. 

Paid Leave: At least thirteen states and the District of Columbia have paid family leave laws in effect with more states who have enacted laws that have not yet gone into effect. This is in addition to mandatory paid sick leave, saved leave, jury leave, prenatal care leave and paid leave to attend school activities.

Takeaways:  Given the trends in legislating employee protections, employers should review their policies to ensure they are compliant with all relevant laws, since what laws may be relevant has exploded in this age of increased remote out of state work. Before dusting off your “form” agreements that may have previously been approved by counsel, send them for additional review to ensure not only that the provisions are enforceable, but even more important, that they are not unlawful. Keep in mind that the analysis includes not only where the employer is located and the choice of law in the agreement, but also where the employee is located and performing work.

If you have questions, please contact Jennifer Jackman or another member of the Workplace Solutions Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.